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Service Tax - Case Laws
Showing 61 to 80 of 144 Records
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2014 (6) TMI 554
Waiver of pre-deposit of duty - Denial of CENVAT Credit - credit of service tax paid in respect of various services received in the residential township for employees. - Held that:- Tribunal in Assessee's own previous case and after relying upon the decision of the Hon’ble Bombay High Court in the case of CCE Vs Manikgarh Cement reported in [2010 (10) TMI 10 - BOMBAY HIGH COURT], directed the applicant to deposit 25% of the duty confirmed - Therefore, assessee is directed to make same pre deposit - stay granted partly.
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2014 (6) TMI 546
Waiver of pre deposit - Undue hardship - uidelines for considering the requirement of pre-deposit - Held that:- if a litigant has got strong prima facie case, then the same can be treated within the fold of undue hardship. But, there are no guidelines in which cases and when undue hardship relatable to prima facie case can be perceived. According to us, it depends upon each and every individual case. Without laying down any exhaustive guidelines, we think that following will be useful for adjudicating the application for waiver of full deposit by the Commissioner as well as this Court - When it is found that the impugned order was passed though having jurisdiction but on apparent non-application of appropriate law or mis - application of law, patently contrary to Supreme Court decision or High Court decision on identical issue which has reached finality, it will also be a strongest case where full waiver be justified. In cases where it is found that there has been an arguable case, apparently, without inviting the counter arguments, the matter cannot be decided, the litigant should be subjected to make pre-deposit to some extent as the learned Commissioner, thinks fit. But, where it is found that there is no absolute debatable case, in those cases, appeals may be allowed to be preferred, but, with the full deposit - to meet the ends of justice, time granted by the learned Commissioner for depositing of the amount of pre-deposit should be extended - Decided partly in favour of assessee.
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2014 (6) TMI 525
Cenvat Credit - input services - cable operator service, repair and maintenance service, manpower supply service, pest control service, telephones, Business Auxiliary Service used/received in the residential colony located outside the factory for residence of their employees has been denied by the lower authorities - in relation to manufacture - Held that : - any service availed in residential colony has no nexus with the manufacturing activity of the appellant. Therefore, input service credit is not available to the assessee - Following decision of CCE vs. Manikgarh Cement [2010 (10) TMI 10 - BOMBAY HIGH COURT] - Decided against assessee.
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2014 (6) TMI 524
Business Support Services - Transportation of parcels, goods and operation of courier services in the buses of the appellant - Held that:- services provided by the appellant would come under the category of ‘business support services’ only from 1.5.2011 when the words ‘operational or administrative assistance in any manner’ were included in the definition of ‘business support services’. It is his submission that services provided by the appellant would clearly come under this category and after 1.4.2011, the appellant is paying service tax under this category. - In view of the clarification issued by the Board while considering the nature of services provided by the appellant, we consider, prima facie, the appellant has been able to make out a case to show that the services provided by them would come under the category of ‘operational or administrative assistance’ and therefore, there may not be any liability prior to 1.5.2011. Accordingly, the requirement of pre-deposit of the adjudged dues is waived and stay against recovery of the same is granted during pendency of the appeal - Stay granted.
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2014 (6) TMI 523
Demand of service tax - processing of tobacco leaves - whether the process are in relation to agriculture produce - Notification No. 14/2004-S.T., dated 10-9-2004 - Held that:- All these operations according to the appellant is in relation to agriculture. In terms of Notification No. 14/2004-S.T., dated 10-9-2004 it was clarified that processing of above goods is in relation to agriculture and shall be exempted from the purview of Service Tax. The said notification underwent amendment by further Notification No. 19/2005, dated 7-6-2005, without altering the substratum of exemption aspect. When further confusion came up, Central Board of Customs & Excise issued Circular No. 143/12/2011-S.T., dated 26-5-2011, clarifying that the activity of processing of tobacco for and on behalf of the client relates to agriculture. Accordingly the appellant has no Service Tax liability. - Decided in favour of assessee.
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2014 (6) TMI 522
Business Exhibition service - reverse charge mechanism - Held that:- In the case of Merino Industries Ltd. v. Commissioner of Central Excise, Meerut-II reported in [2011 (7) TMI 820 - CESTAT, NEW DELHI] on the same issue this Tribunal has granted unconditional waiver of pre-deposit of entire amount of service tax, interest and penalty in similar facts. Therefore, the applicants are entitled for waiver of pre-deposit. Following the ratio of the precedent decision, in this matter also, we find that the applicants had made out a case for waiver of the pre-deposit. Accordingly, we waive the requirement of pre-deposit of the entire amount of Service Tax, interest and penalty and stay recovery thereof during the pendency of the appeal - stay granted.
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2014 (6) TMI 521
Maintenance and Repair services - demands of Service Tax - Held that:- Finance Act, 1994 has been amended by introducing Section 97(1) wherein special exemption has been granted for ‘management and maintenance of roads’ for the period 16-6-2005 to 26-7-2009 and for the period after July, 2009, the activity of ‘management and maintenance of roads’ has been exempted from Service Tax. In view of this observation, we find that in all the matters, the period is subsequent to 16-6-2005 when the entry of ‘management and maintenance of roads’ came into existence - Decided in favour of assessee.
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2014 (6) TMI 517
Cenvat credit - place of removal in case of export - Shipping Services, Documentation charges and Terminating Handling charges - Refund of the service tax paid on the services in terms of Notification No. 41/2007-ST dated 06.10.2007 and subsequent Notification No. 17/2009-ST dated 07.07.2009 - Held that:- Tribunal in a number of decisions has held that inasmuch as for export purposes, the place of removal get extended to the load port, the Shipping services availed at the port have to be held as cenvatable input services within the meaning of clause (l) of Rule 2 of the Cenvat Credit Rules, 2004. Reference, in this regard, can be made to the Tribunal decision in the case of CCE V/s. Adani Pharmachem Pvt. Ltd. [2008 (7) TMI 102 - CESTAT AHMEDABAD]. It stands held that as ‘Port’ is place of removal for export cargo for the reasons that ‘sale’ takes place only when the bill of lading is issued by the shipping company, which is issued only after the goods are loaded into the ships, the port area becomes the place of removal.
Regarding contention of the department that appellant should have claimed refund of service tax instead of availing the Cenvat credit - Held that:- two option having been extended to the assessee, it is his choice to avail any one such option. It is not the revenue's case that the notification in question, which permits refund, debars availment of credit, in case refund is not claimed. As such it is absolutely the assessee option to claim the Cenvat credit or to claim the refund. For the above proposition reliance is placed upon the Hon’ble Supreme Court in the case of Commissioner of Central Excise & Customs (Appeals), Ahmedabad Vs. Narayan Polyplast-[2004 (11) TMI 112 - SUPREME COURT OF INDIA] laying down that an assessee can choose to avail the benefit under any of the schemes, when benefits are available under two different schemes.
Commissioner (Appeals) in the assessee own case, for a different period has held in favour of the assessee. It stands observed by the appellant authority that Cenvat credit was available to them and they cannot be pressurized to claim the refund in terms of notification No. 41/2007. He has also observed that the entire issue is revenue neutral inasmuch as if the appellant had not availed the credit, they were entitled to refund - Decided in favour of assessee.
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2014 (6) TMI 493
Demand of service tax - Business Auxiliary Service - chilling of milk to temperature below 50Celcius for M/s. SZDUSS Ltd - Held that:- mere chilling of milk to temperature below 50Celcius for the purpose of its long distance transportation, does not amount to production or processing of goods, as there is no permanent or temporary change in milk other than lowering of the temperature by the process of chilling of milk, due to which it can be transported over long distance without getting spoiled. The Apex court in the case of Commissioner Income Tax Vs. N.C. Budharaja & Co., reported in [1993 (9) TMI 6 - SUPREME Court] has held that word production, when used in juxtaposition with word ‘manufacture’, takes in bringing into existence new goods by a process, which may not amount to manufacture. Therefore ‘Production’, there must be some change in the raw-material subjected to process, though by that change no new product with distinct characteristic, commercial identity and usages has emerged. The process of chilling of milk to make it fit for long distance transportation without getting spoiled, which does not bring into existence any change whatsoever, would not amount to production or processing of the goods not amounting to the manufacture. We also find that earlier, the Commissioner (Appeals) on this very issue had taken view that chilling of milk is not Business Auxiliary Service covered by section 65(19)(v) of the Finance Act, 1994. In view of this we hold that impugned order is not sustainable - Decided in favour of assessee.
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2014 (6) TMI 492
Demand of service tax - Business Auxiliary Services - Job work of converting rounds into handles which are a part of scaffolding - Held that:- appellant had intimated the department about availment of exemption under notification no.214/86-CE and also the principal manufacturer had given an undertaking under this exemption notification to use the job work goods in the manufacture of finished products which would be cleared on payment of duty. It is clear that the department itself has accepted the appellant’s activities as manufacture. Moreover subjecting the rounds to the process of cutting, bending, threading, heat treatment, shot blasting, as a result of which, a part of scaffolding item ‘Handle’ emerges, would amount to manufacture. Therefore, the activity of the appellant cannot be treated as Business Auxiliary Services (production of goods not amounting to manufacture). Moreover, even if, it is treated as service, when it is not denied that the job-work goods were returned by the appellant to the principal manufacturer, the exemption under Notification No.8/2005-ST dated 1.3.2005 cannot be denied on the ground that there is no evidence that the goods produced were used by the principal manufacturer in or in relation to the manufacture of final products. In view of this, the impugned order is not sustainable. The same is set aside - Decided in favour of assessee.
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2014 (6) TMI 491
Waiver of pre-deposit - tour operator service - domestic and international tour packages - export of services - valuation - Held that:- According to the table furnished by the petitioner the tax liability component on domestic tour packages (after including the amounts received towards air tickets) is Rs.2,28,643/-, on international tour packages (within the normal limitation period) Rs.2,06,116/- and penalty of interest thereon. - assessee directed to deposit Rs. 10 lakhs (Rupees Ten lakhs), to cover the prima facie liability of tax, interest and penalties on the aforesaid two components of the taxable service. - stay granted partly.
Refund of excess pre-deposit - Revenue recovered Rs.29,53,000/-. High Court directed the revenue that it is willing to permit Revenue to retain 50% of the said amount provided Revenue refunds the balance of 50% i.e. Rs.14,76,500/- - Held that:- pursuant to the order of the Karnataka High Court [2013 (6) TMI 644 - KARNATAKA HIGH COURT], Revenue had refunded Rs.14,76,500/- to the assessee. In the light of our prima facie analysis of the petitioner's liability and the conditional order of pre-deposit and stay of further proceedings pursuant to the adjudication order, as mentioned earlier herein, we direct Revenue to refund to the assessee Rs.4,76,500/- within two weeks from the date of this order - Decided in favour of assessee.
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2014 (6) TMI 490
Activity undertaken for plying the buses, inter-State and intra-State - Contract carriage permit - Demand of Service Tax - exemption Notification No. 20/2009-S.T., dated 7-7-2009 - Held that:- activity undertaken by the appellants was exempted by Notification No. 20/2009-S.T., dated 7-7-2009 and the retrospective effect was granted to the exemption through Section 75 of the Finance Act, 2011 and the same is applicable from 1-4-2000. Therefore, the activity undertaken by the appellants is not chargeable to Service Tax with effect from 1-4-2000 and admittedly, in this case the period involved is 1-4-2000 to 31-3-2004. Therefore, no demand can survive - Decided in favour of assessee.
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2014 (6) TMI 489
Waiver of pre-deposit - Cenvat credit on various input services - Held that:- Applicant has a strong case in their favour in respect of outward courier services, Rent-a-cab services and Tour and Travel services on the basis of decision of the Tribunal and High Court cited above. I find that the Architectural Consultancy service which is used for guest houses and conference prima facie is not connected to the manufacturing of final product - stay granted partly.
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2014 (6) TMI 461
Waiver of pre deposit - works contract - Valuation - inclusion of value of supply and erection and commissioning of transformers - Cenvat Credit - Penalty - Held that:- the denial of the Cenvat Credit on the inputs which has gone into manufacturing of the said transformers cannot be upheld for the reason that the activity of manufacture of transformers is excisable and the excise duty liability has been discharged by the appellant.
Prima facie, the value of transformers cannot be included in such execution of works contract as there is no dispute that M/s. Sunil Hitech Engineers Ltd. had given them two separate contracts for supply of transformers and erection and commissioning of such transformers.
Nature of contract - composite contract or separate contract - Held that:- Tender as floated by MSEB/MSDEL, sought quote for supply and erection and commissioning of transformers separately; but while awarding the tender to M/s. Sunil Hitech Engineers Ltd., we find that MSEB/MSDEL had infact executed three separate contracts i.e. one for supply of transformers; one for erection and commissioning of such transformers; one for civil construction of required-for erectioning and commissioning of such transformers. It is also noticed that the said M/s. Sunil Hitech Engineers Ltd. who bagged the contract had given back to back contract to M/s. IMP. Powers Ltd. for supply of transformers and erectioning and commissioning of the same and had given the civil construction contract to somebody else. Prima facie, we are of the view that the ratio of the judgment of this bench in the case of M/s. Essar Projects (India) Ltd. (2013 (12) TMI 796 - CESTAT AHMEDABAD) would apply and hence we hold that the all appellants have made out a prima facie case for waiver of the duties, interest and penalties confirmed by the adjudicating authority. - Stay granted.
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2014 (6) TMI 460
Demand of service tax - Management, Maintenance and Repair Service - Held that:- The appellant’s were providing the service of retreading of tyres, which is a taxable service. The main contention of the appellant is that they paid service tax on labour portion. They are contesting demand on the material portion - in the case of maintenance and repair of transformers entered into agreement with clients in two separate parts, namely, scope of repair work and supply of parts, the value of the goods used in carrying out repair activities is not includible in the taxable value.
Service tax can be levied on the service component of any contract involving service with sale of goods etc. Computation of service component is a matter of detail and not a matter relating to validity of imposition of service tax. It is procedural and a matter of calculation. Merely because no rules are framed for computation, it does not follow that no tax is leviable - tax is not leviable on material portion of the contract. But, it is required to examine the record - Matter remanded back - Decided in favour of assessee
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2014 (6) TMI 459
Denial of refund claim - Bar of limitation - Held that:- appellant was not required to pay service tax but they paid the service tax wrongly. Therefore, as held by the Hon’ble High Court of Madras in the case of Natraj & Venkat Associates (2009 (10) TMI 36- Madras High Court) that the provisions of Section 11B of the Central Excise Act, 1944 are not applicable. Therefore, refund claim cannot be held as time barred. - Decided in favour of assessee.
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2014 (6) TMI 458
Service tax liability - Management, Maintenance and Repair services - Held that:- appellant has been making available excess plant capacity available with them for manufacturing of insecticides to one M/s. Gharda Chemicals Limited which is done under the provisions of Rule 4(5) of Cenvat Credit Rules, 2004, i.e. Job Work. In our considered view, the service tax liability on the appellant under the category of Management, Maintenance and Repair, prima facie, may not arise, as it is on record that the plant capacity which has been made available to M/s. Gharda Chemicals was their own plant and which they were not using. Accordingly, we find that the appellant has made out a prima facie case for complete waiver of pre-deposit of amounts involved - Stay granted.
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2014 (6) TMI 457
Man power recruitment - supply services to sugar mill - Held that:- it is undisputed fact on record that the agreements were entered between the appellant and the sugar mill for undertaking various jobs like loading/unloading in trucks, weighment, restacking of sugar bags, removal of sugar bags etc. The labourers employed by the appellants were their own employees meant for doing the agreed job. It cannot be said at this prima facie stage that the appellants have undertaken services of man power supply - Stay granted.
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2014 (6) TMI 456
Cenvat credit - GTA service - Challan as inadmissible document - Held that:- When tax has gone into treasury, unless the depositor is otherwise disentitled, credit thereof cannot be denied for set off against tax/duty liability - Decided against Revenue.
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2014 (6) TMI 426
Writ of Certiorarified Mandamus - Call for records - proceedings are in the nature of notices calling upon the petitioners herein to show cause the reasons as to the non-registration and non-payment of service taxes - Held that:- Respondent/first respondent (as the case may be), - the Joint Commissioner/the Additional Commissioner, Office of the Commissioner of Central Excise and Service Tax, Tiruchirappalli - 620 001, shall bear in mind the clarifications issued in Circular No.123/5/2010 dated 24.05.2010 and proceed further in the matters. The petitioners herein are directed to submit their objections/reply within a period of two weeks from the date of receipt of a copy of this order and the respondent/first respondent (as the case may be), is directed to consider the objections/reply submitted by the petitioners and proceed with the matters and pass final orders, within a period of six (6) weeks, from the date of receipt of objections from the petitioners.
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