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Service Tax - Case Laws
Showing 1 to 20 of 209 Records
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2014 (7) TMI 1272
CENVAT credit - input services - outdoor catering services - medical insurance - Held that: - The definition of 'input service' is very broad, which includes 'activities relating to business', to be covered within its purview, for the purpose of availment of Cenvat credit. It is admitted fact on record that the disputed input services are business related expenditure of the appellant, which is duly reflected in the CAS-4 maintained as per accounting standards. Hence, it will not be prudent to disallow the Cenvat credit on such services.
Credit allowed - appeal allowed - decided in favor of appellant.
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2014 (7) TMI 1251
CENVAT credit - tour operator service - rent-a-cab service - N/N. 1/2006 - Held that: - on the very same issue in respect of the very same appellant for the earlier period, vide Final Order No. 20187/2014 dated 06.02.2014, this Tribunal had remanded the matter to the Commissioner for fresh adjudication - the matter is remanded to the Commissioner to decide the issue along with the matter already remanded vide Final Order referred above - appeal allowed by way of remand.
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2014 (7) TMI 1243
Non-compliance with pre-deposit - Section 35F of the Central Excise Act, 1944 - Held that: - As per the decision of the Hon’ble Bombay High Court, when a matter comes up for compliance of pre-deposit and the appellant is before the Hon’ble High Court, the appellant should be given 15 days time to get interim directions. In the present case, 15 days period got over almost five months back. Even though almost six months are over, the appellant has failed to get any interim directions from the Hon’ble High Court and the appellant has been enjoying extension of stay without any valid reason - we dismiss the appeal of the main appellant, M/s. Kingfisher Airlines Ltd., for non-compliance with the provisions of Section 35F of the Central Excise Act, 1944, read with Section 83 of the Finance Act, 1994 - As regards the co-appellants their stay petitions may be listed separately for hearing on 28th July, 2014 - appeal dismissed - decided against appellant.
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2014 (7) TMI 1211
Adjustment of excess service tax paid – demand of tax, interest and penalty – Held that: - the same issue was the subject matter in another case of the appellant which has been decided by CESTAT in their favour vide Order No. 52863 dated 10.07.2014 – appeal allowed – decided in favor of appellant.
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2014 (7) TMI 1200
Waiver of pre-deposit - Demand of service tax on repair and maintenance services rendered to Military Engineering Service (MES) - Demand confirmed on services rendered to MES and cum-service tax benefit has not been extended - Held that:- as has been clearly brought out by the adjudicating authority and admitted by the appellants, the services rendered by them to MES are classifiable under Erection, Commissioning or Installation Service and there is no requirement that these services to be taxable should be rendered to a commercial organisation.
The adjudicating authority has indeed considered this point to come to a finding that the cum-tax benefit is not available to the appellants. Although in the concluding para, while remanding the case for de novo adjudication, CESTAT had not given specific directions to extend the said benefit, it can be argued that CESTAT intended to extend such benefit. At the stage of deciding stay petition, prima facie, this point can be allowed to play in favour of the appellants.
As regards the contention of the appellants that they had given separate values of the goods supplied and therefore the benefit of deduction of the value of the goods should have been allowed and also the work done in J&K should also have been excluded, we find that the point regarding service rendered in J&K had not been taken up by the Appellants before the adjudicating authority but their contention regarding excluding the value of goods for the purpose of service tax has force as service tax cannot be charged on the sale/transfer of goods. - stay granted partly.
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2014 (7) TMI 1196
Eligibility of refund claim of Cenvat credit - Rule 5 of the Cenvat Credit Rules, 2004 read with Notification No.5/2006-C.E. (N.T.) dated 14.03.2006 - Huge accumulated Cenvat credit of service tax paid on the input services - Early drug discovery services taxable under category of Scientific and Technical Consultancy Service exported to its overseas clients - Received various input services and avails Cenvat credit of Service tax paid on such input services - Services has no nexus with the output services.
Held that:- the business activities in the case of a service provider are not only confined to mere proving the service directly, but also include other activities, which he may be required for accomplishing the purpose of business. For smooth functioning of the business of providing the service and other like activities, the service provider may use other services, which are ancillary and incidental for accomplishing the main purpose. In such an eventuality, it cannot be said that the function of those ancillary services are not connected to the business purpose of the assessee. Therefore, in view of the definition of input service and the ratio laid down by the Hon'ble Bombay High Court, any service received and which is commercially required for the purpose of carrying on the business of the service provider, will be covered by the expression 'activity relating to business' contained in Rule 2(l) of the Cenvat Credit Rules, 2004.
The nature, purpose and use of the disputed services by JBL establish the fact that the expenditure incurred for those purported disputed services are commercially required to be incurred with a view to facilitate the carrying on the business of providing the taxable service, and thus, confirming to the expression 'activities relating to business' as contained in the definition clause of 'input service'; as the word 'business' is one of wide import and in fiscal statutes, it must be construed in a broad rather than a restricted sense. Therefore, denial of refund benefit to JBL under Rule 5 ibid by the authorities below is not justified. I am also of the considered view that there are no merits in the appeals filed by the Revenue, because of the fact that the nexus between the input services and the output service exported by the appellant is duly established by JBL for claiming of refund of accumulated Cenvat credit.
whether refund application was filed within the prescribed time limit - Held that:- at this juncture, it is not appropriate for the Tribunal to ascertain the dates, when the refund applications were filed by JBL for the purpose of computation of the limitation. Therefore, the matter should be remanded back to original authority for ascertainment of fact regarding the date of filing of the refund applications and if the applications were filed within the stipulated time limit, then to decide the matter in line with the observations recorded above. - Appeals disposed of
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2014 (7) TMI 1165
Disallowance of 67% abatement under Notification No. 1/2006-S.T - re-classification of the services - waiver of impugned demand, interest and penalties and stay recovery thereof - Held that:- On perusal of Notification No. 1/2006 it is evident that for the purposes of 67% abatement, the condition of non-availment of Cenvat credit is prescribed only in respect of inputs and not in respect of input services. Thus Commissioner has completely misread the provisions of said notification to disallow abatement of 67% under the said notification.
As regards re-classification of the services rendered by the appellants after introduction of Works Contract Service, it is trite to say that the service rendered has to be classified as per the provisions applicable on the date of delivery of service. It is not disputed that from 1-6-2007 the service rendered by the appellants categorically fell under the category of Works Contract Service and therefore the re-classification on their part prima facie was as per law.
The appellants would be entitled to 67% abatement under Notification No. 1/2006-S.T. The service tax payable after allowing 67% abatement will reduce to 33% of the amount of demand confirmed. Service Tax @ 4% under the Composition Scheme also works out to approximately in the same range. Further in such a scenario, the sustainability of the allegation of suppression/wilful mis-statement can also, prima facie, be in serious jeopardy. Thus the appellants have made out a good case for waiver of pre-deposit
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2014 (7) TMI 1163
Appeal against the order of the tribunal [2013 (11) TMI 1576 - CESTAT NEW DELHI] - If the grievance of the appellant is that a submission in regard to the imposition of the penalty which was urged before the Tribunal has not been considered, the appropriate remedy would be to move the Tribunal itself for such a grievance. - No Reason to entertain the appeal - Decided against the assessee.
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2014 (7) TMI 1154
Non compliance of direction of High Court to execute bank guarantee in lieu of pre-deposit of amount as ordered by the Tribunal in the stay order - there has been delay of more than four weeks in making compliance with the Order of the Hon’ble High Court - Ld. Consultant for the Appellant submits that they may be given an opportunity to approach the Hon’ble High Court to seek an appropriate Order in this regard. In the interest of justice, accordingly, the matter is adjourned.
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2014 (7) TMI 1137
Courier Service - Non filing of returns - Penalty u/s 76, 77 & 78 - Held that:- National Manager - Accounts of the appellant-firm had clearly admitted to non-payment of Service Tax since October 2003 onwards. From the records, it is seen that, since October 2003 onwards the appellant-assessee has also not filed Service Tax returns. Even for the earlier period, no return has been filed for the period April 2002 to September 2002. From the evidence available on record and from the admission by the National Manager - Accounts of the appellant-firm, it is clear that the appellant-assessee did not discharge Service Tax liability. From the investigation report also it is clear that the appellant did not cooperate with the investigating agency with regard to the quantification of the Service Tax liability and, therefore, as a last resort, the Service Tax liability had to be computed based on the balance sheet figures and trial balance figures which were taken out from the computer maintained by the appellant. In these circumstances, determination of the Service Tax liability by the adjudicating authority based on the figures/records maintained in the computer cannot be faulted at all. - while re-determining the tax liability from these figures, the question of determination of assessable value and tax would automatically arise and, therefore, the adoption of the figures in the balance sheet as cum-tax value by the adjudicating authority cannot be faulted - Decided partly in faovur of Revenue.
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2014 (7) TMI 1136
Condonation of delay - delay of 311 days - Invalid of service of order - Held that:- Security service is an agent of the applicant and it is also responsibility of the security service to receive the mails, courier etc. We find force in the submission of the learned Authorised Representative that the appellant appeared in the personal hearing before the adjudicating authority and thereafter, there was no follow up by the applicant in respect of the present proceedings. Thus, it is a clear case of sheer negligence and/or inaction on the part of the appellant. - No satisfactory reason for condonation of delay in filing the appeal. Accordingly, both the applications for condonation of delay of filing appeals are rejected - Decided against assessee.
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2014 (7) TMI 1135
High Court admitted the appeal against the order of tribunal [2014 (2) TMI 209 - CESTAT AHMEDABAD] - Whether CESTAT committed error in interpreting provisions of Rule 4(4) of Service Tax Rules, 1994 read with Rule 9(1) of Cenvat Credit Rules, 2004 by allowing Cenvat credit distribution to the branches of assessee, though there was no registration of assessee U/s 4(A) under Service Tax Rules, 1994?
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2014 (7) TMI 1083
Goods Transport Agency Service - abatement of 75% of the gross amount charged from the customer under Notification No. 32/2004-S.T., dated 3-12-2004 - denial of abatement claim based on ‘general declarations’ given by the GTA - discharge of the Service Tax liability on an amount of 25% of the freight paid - department did not verify the declarations - Held that:- service recipient who discharges the Service Tax liability under Goods Transport Agency services, is eligible to claim abatement of 75% of the amount of freight paid by him - assessee is engaged in manufacture of P&P medicaments and is also engaged in providing taxable service under the category of ‘Technical Inspection & Certification Service’ and in the capacity of service receiver, the respondents was liable to pay the service tax on ‘Goods Transport Service’. Tribunal considered the Notification No. 32/2004-S.T., dated 3-12-2004 which provided for abatement of 75% of the gross amount charged from the customer for the purpose of calculating the liability of service tax subject to the condition that the no CENVAT Credit had been availed and benefit of Notification No. 12/2003-S.T., dated 20-6-2003 also had not been availed - requirements prescribed by the Board’s Circular was not mandatory and it was working out modality for implementing provisions of law for denial of substantive rights, use of the same cannot be made - Following decision of COMMR. OF SERVICE TAX, AHMEDABAD Versus CADILA PHARMACEUTICALS LTD. [2013 (1) TMI 353 - GUJARAT HIGH COURT] - Decided in favour of assessee.
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2014 (7) TMI 1082
CENVAT Credit - cargo handling services, advertising agency service/sale of space or time for advertisement, business auxiliary service/business support service, management maintenance or repairs service for maintenance and repair of plant and machinery, general insurance services, manpower recruitment and supply agency services, technical testing and analysis service and scientific or technical consultancy services and in respect of C & F Agent’s service - Held that:- Services like advertisement or sales promotion, repair and maintenance, quality control, recruitment are specifically covered within the inclusive portion of the definition of input service. However, while the C & F agency service would be covered by the main definition clause - “services used by the manufacturer in or in relation to clearance of the final product from the place of removal” for the period upto 31-3-2008, during the period w.e.f. 1-4-2008, the C & F agency service for clearance of the goods “from the place of removal” would not be covered by the definition of ‘input service’, when by amendment to Rule 2(l), the scope of clearance related services for the purpose of Cenvat credit has been restricted to the services availed upto “the place of removal”, we are of prima facie view that the C & F services availed “from the place of removal” would neither be covered by the main definition part of the definition of ‘input service’ nor by the inclusive part of the definition.
As regards the cargo handling service, it has been explained by the appellant that this service, is required for handling the cement manufactured by them at the factory’s railway siding and at various depots and the same is an important input for them. In our view, this service would be covered by the expression - “activities relating to business” in the inclusive portion of the definition. Similarly, general insurance service for insurance of plant and machinery is also an activity integrally connected with the manufacturing business.
Appellant would be eligible for Cenvat credit in respect of cargo handling services, advertising agency service/sale of space or time for advertisement, business auxiliary service/business support service, management maintenance or repairs service for maintenance and repair of plant and machinery, general insurance services, manpower recruitment and supply agency services, technical testing and analysis service and scientific or technical consultancy services and in respect of C & F Agent’s service upto 31-3-2008. - Conditional stay granted.
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2014 (7) TMI 1081
Cargo Handling service - Violation of principle of natural justice - Non consideration of case laws cited - Held that:- Commissioner (Appeals), after relying on para 3.08 of the subsequent Work Order of BVFCL dated 12.11.2005, which provided for reimbursement of service tax at the rate of 10.20% adv. of the actual executed work by BVFCL, has arrived at a conclusion that service rendered by the Appellant, is taxable as Cargo Handling Services without examining the nature of the services rendered by the Appellant under various contracts vis-as-vis classification of the said services - Commissioner (Appeals) has not considered any of the case laws cited before him. We, therefore, find that the Order of the ld. Commissioner (Appeals) is non-speaking and accordingly, the same is set aside - Matter remanded back - Decided in favour of assessee.
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2014 (7) TMI 1080
Waiver of pre deposit - manufacture of goods on Job work basis - Post Job work activity being transportation of goods - Business Support Services - revenue contended raised the demand under the category of “Support Services of Business or Commerce” (BSS) as the Applicant had handled the goods manufactured on job-work basis in the capacity of a "Marketing and Consignment Agent ” of M/s TSL - Held that:- Prima facie the case has been built against the Applicant, as is clear from the impugned notices that the Applicant had received service charges, for rendering post removal activities, from M/s. Tata Steel Ltd., but failed to discharge Service Tax as required, under the category of “Business Support Services”.
There is no merit in the argument of the Revenue that in the said conversion charges, the post removal service charges are already included therefore, the Applicant are required to discharge Service Tax, in addition to the excise duty paid on such converted material, including freight charges. - Spl. Counsel also could not place any evidence to show that the Applicants were though re-imbursed with the freight amount in addition to the conversion charges by M/s TSL, but the same is attributable towards rendering of other post removal service and not transporting of the goods from their factory to the stock yards of M/s TSL. In the result, prima facie, it could be said that the Applicant had not received any service charges in addition to conversion charges and freight charges, at actuals towards the services relating to post removal activities of the job-worked goods manufactured in the factory. Applicant could able to make out a prima facie case for total waiver of pre-deposit of dues adjudged - Stay granted
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2014 (7) TMI 1079
Classification of service - C and F service or Business Auxiliary service - Held that:- there is an agreement dated April 11, 2001 between assessee and NICL for appointment as depot operator for organizing and promoting sale of their CLP for the year 2001-02. There is no agreement between NICL and assessee for the period 2004-05. Commissioner in the order in original has observed that since show-cause notice nowhere mentions that payment was received under head of freight, loading/unloading, general expenses and incentive, services provided by assessee to NICL is business auxiliary service (BAS) with effect from July 1, 2003. For the period prior to July 1, 2003 there was no specific category of commission agent's service. Commissioner applies section 65A for determination of classification of service.
When prior to July 1, 2003 BAS was not in existence, there is no reason to apply section 65A in this case. Commissioner classifies the service as C and F service for 2001-02 and under BAS with effect from July 1, 2002 though there was no proposal classifying the service under BAS in the show-cause notice and he has confirmed the entire demand. - matter remanded back - Decided in favour of assessee.
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2014 (7) TMI 1051
Telecommunication service - non receipt of consideration for services rendered - Wrong availment of CENVAT Credit - non consideration of all pleas of assessee - Violation of principle of natural justice - Held that:- during the period for which these demands have been confirmed, the service tax payable on the basis of the amount realized was more than the service tax actually paid. It is considered that assessee's contentions for demand of service, education cess or CENVAT credit were not considered - Matter remanded back for de novo adjudication - Decided in favour of assessee.
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2014 (7) TMI 1050
Commercial coaching and training centre - vocational coaching services - Exemption Notification No. 24/2004-ST dated 30/06/2004 - Held that:- Technology based training for employment skill development, the training courses for medical transcriptionist, insurance agents etc. are vocational course which enable the persons receiving such training to get direct employment or get self-employed. Therefore these training courses though imparted with the aid to computers cannot be treated as computer training courses and, hence, would be eligible for exemption under Notification No. 24/2004-ST. - stay granted.
Cenvat credit demand of ₹ 81,476/- the same is based on the allegation that though the appellant provide taxable services as well as fully exempt services and have used common inputs/input services in respect of the same, they have not maintained separate account in this regard and have not confined the Cenvat credit availment only to the input services meant for taxable services. Though the appellant plead that they were maintaining separate account of inputs/input services, prima facie no evidence in this regard has been produced. Therefore, on this count, the appellant have not established prima facie case in their favour - stay granted partly.
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2014 (7) TMI 1049
Valuation - Construction of complexes - inclusion of free material supplied - Abatement of 67% - Exemption Notifications - Whether the value of free supply material supplied by the customers is to be included in the gross amount for the purpose of notification no.15/2004-ST dated 10.09.2004 and notification no.18/2005-St dated 7.6.2005 - Held that:- since the building was used for commercial purposes, the construction service provided in respect of the same would have to be treated as civil or industrial construction service. However, the appellant's plea that the amount of ₹ 8,26,971/- also includes the service tax demand on the free supply material supplied by M/s. Ashok Leyland Ltd. and service tax charged on account of free supply material in all the project executed by the appellant is included in the amount of ₹ 31,38,281/-, this point has to be examined by the adjudicating authority for which the same would have to be remanded.
Building to be used by the Tanzania High Commission is not covered by the definition of ‘Commercial or Industrial Construction Service’ as given in Section 65(25b) - service tax demand of ₹ 31,58,281/- in respect of the value of free supply materials supplied by the customers and the service tax demand of ₹ 10,65,742/- in respect of the construction of Tanzania High Commission’s building and their staff quarters is set aside - Decided in favour of assessee.
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