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Service Tax - Case Laws

Showing 201 to 209 of 209 Records

• 2014 (7) TMI 76
  

  Disallowance of CENVAT Credit - Trading activity - Credit reversed before issuance of SCN - Thereafter assessee did not respond to SCN and not attended hearing - Ex parte order passed - Imposition of penalty and interest - Held that:- From the judgment in Bill Forge Pvt. Limited [2011 (4) TMI 969 - KARNATAKA HIGH COURT], it is clear that liability to interest under Rule 14 of the Cenvat Credit Rules, 2004 read with Section 75 of the Finance Act, 1994 would arise only on that amount of cenvat credit, both debited in assessee’s books of accounts and utilised (taken) for remittance of the assessee s tax liability. There is no discussion in the adjudication order on this aspect of the matter. We, therefore, remit the matter to the respondent -Adjudication Authority for computation of the amount of interest liability, on the basis of the actual amount of cenvat credit utilised for discharging its service tax liability on the taxable services provided, by the assessee.

  Adjudication orders are sustained to the extent of the asssessed demand of cenvat credit and appropriation of the irregularly availed credit reversed by the assessee. The amount of penalty is also confirmed subject to an option that shall be provided to the appellant, to remit 25% of the penalty together with the specified interest, within thirty days from the date an order is passed by the Respondent determining the interest liability afresh, under Rule 14 of the Cenvat credit Rules read with Section 75 of the Finance Act, 1994, and the order is communicated to the appellant. This option shall be provided by the adjudication Authority in the order to be passed, pursuant to this remand - Decided partly in favour of assessee.

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• 2014 (7) TMI 75
  

  Waiver of pre-deposit of Service Tax - appreciation of evidences - demand of service tax on the basis of figure shown as other income in the profit and loss account - difference with ST-3 return - demand on GTA Service - Held that:- It is the claim of the department that the Applicant though pleaded before the adjudicating authority that they were carrying out the activity of sale of LPG, as well as rendering the services of bottling of LPG for M/s.HPCL, but could not establish the same through evidences. On the other hand, it is the grievance of the Appellant that the ‘sales’ and ‘other income’ figures are self-explanatory, as mentioned in the respective Balance sheet and though they could place the VAT payment challans, VAT Audit Report but due to internal family dispute, could not produce the VAT Returns filed with State VAT department and other corroborative evidences, in support of sale of LPG. We find that the case relates to scrutiny of evidences, in arriving at a conclusion that the Appellant are rendering services of bottling LPG as well as carrying out the activity of sales of LPG.

  Appellant even though produced VAT audit report etc., but other documents like VAT returns, sales and purchase of LPG etc., could not be produced before the Ld.Commissioner to establish sale of LPG because of internal disputes in the management of factory. Similarly, in the case of Service Tax liability on GTA Service, we find that the documents indicating the claim of payment of Service Tax by GTA service provider had not been verified/scrutinized by the adjudicating authority. In these circumstances, we are of the view that the Appellant be given an opportunity to place all necessary evidences in support of their claim that they were carrying out the activity of sales as well as rendering services to M/s.HPCL and also the claim of payment of Service Tax on GTA service by the respective GTA service provider. In the result the impugned order is set aside and the matter is remitted to the Ld. adjudicating authority to decide all the issues afresh - Decided in favour of assessee.

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• 2014 (7) TMI 74
  

  Import of services - reverse charge - Appellant claimed that the service tax demanded against them under the Head, ‘Intellectual Property Service’, had already been discharged under the Head, ‘Scientific and Consultancy Services’ - Held that:- After going through the Certificate of the Chartered Accountants dated 23.01.2014 placed before us, apparently we find that the Applicant had discharged the service tax involved in the present case, under the category, ‘Scientific and Consultancy Services’, for which the show cause notice was issued to them under the category, ‘Intellectual Property Services’, as is evident from the Annexure to the said show cause notice - Matter remanded back - Decided in favour of assessee.

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• 2014 (7) TMI 36
  

  Penalty u/s 77 - Waiver of penalty u/s 80 - Business Auxiliary Service - Whether penalties imposed upon the appellant could be waived as per provisions of Section 80 of the Finance Act 1994 - Held that:- Audit officers of the Dept. gave intimation dated 6/5/2009 to the appellant and called for certain information. Even after follow up by the Dept Officers, appellant did not provide the relevant details for almost one month. The case was subsequently taken over by the HQ (Preventive) and several summons were also issued to the appellant for submitting complete details of the Business Auxiliary Service provided to M/s Ratnamani Metals and Tubes Ltd during the year 2008-09. Only on receipt of such letter, the appellant started discharging their service tax liabilities under Business Auxiliary Service in the month of July 2010 through GAR-7 challans. It is also evident from the facts stated in Para 12 of the OIO dated 27/3/2012 that service tax for the Business Auxiliary Service provided to M/s Ratnamani Metals and Tubes Ltd were recovered in the invoices and appellant was aware of that fact. However, while filing ST-3 returns for the relevant period, service tax payment for these services was shown as Nil by the appellant. From the available case records and the arguments made by the appellant, no reasonable cause has been shown by the appellant to bring out as to what prevented them from making payment of service tax when the same has been recovered from the service recipient in the invoices. Therefore, in the present set of facts and circumstances, it is held that the benefit of Section 80 of the Finance Act 1994 cannot be extended to the appellant - Decided against assessee.

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• 2014 (7) TMI 35
  

  Demand of service tax - Maintenance and repair services - Service provided before being a taxable service - After service became taxable, work done as sub contractor - Held that:- this point was not raised before the adjudicating authority. Secondly, it is not coming out clearly from the case records whether these services rendered before 16.06.2005 were in respect of immovable property or not. The veracity of the appellant’s claim has to be gone through by the original adjudicating authority. Further, it is observed that the entire service tax demand is not for the period prior to 16.06.2005 and certain period of demand is after 16.6.2005 when immovable property was also covered under ‘Maintenance and Repair Services’.

  Charging of service tax from the sub-contractor - All the services provided by the appellant as sub-contractor may not be provided before 23.08.2007 as per the period of demand mentioned in the appeal memorandum. These factual verifications of entire service tax paid by the main contractor and whether the services were provide before or after 23.08.2007, have to be made and gone into details by the Adjudicating authority in the light of various case laws relied upon by the appellant, for which the matter is required to be remanded back to the adjudicating authority. - Decided conditionally in favour of assessee.

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• 2014 (7) TMI 34
  

  Levy of penalty - delayed payment of service tax - Clearing and Forwarding Services, Port Services, Goods Transport Agency Service - Held that:- there is a case of delayed payment of service tax. However, the same has been paid before issue of SCN. The assessee has explained the reason for delay, due to the fact that earlier OIO No.92/2007 dt . 25.5.2007 was appealed before the Tribunal and a batch of similar cases was pending before the Larger Bench for its decision. There is no material available that the appellant deliberately delayed payment of duty.

  Since service tax and interest was paid before issue of SCN, the instant case, the case is covered under Section 73 (3) of the Finance Act, 1994, the case merits for waiver of penalty. However, as regards the demand of interest, the adjudicating authority has rightly held that they have paid interest only on the service tax paid in cash but not on the tax amount adjusted through cenvat account. Therefore, interest liability calculated on the entire amount of service tax is payable - Differential amount of interest confirmed however, penalty is set aside - Decided partly in favour of assessee.

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• 2014 (7) TMI 33
  

  Penalty u/s 76, 77 & 78 - waiver of penalties u/s 80 - commission received on sale of RBI bonds and mutual funds - appellant paid the amount of service tax before issuance of show cause notice - Held that:- Board issued Circular No. 66/15/2003 dated 5.11.2003 wherein it has been clarified that the benefit of Notification 13/2003-ST is applicable only for commission agent dealing in goods and not to the commission received by the distributor of mutual funds. This circular was subsequently quashed by the Hon'ble Andhra Pradesh High Court in the case of Karvy Securities Ltd. [2004 (9) TMI 604 - ANDHRA PRADESH HIGH COURT]- Tribunal in the case of CST vs. P.N. Vijay Financial Services Pvt. Ltd. reported in [2008 (9) TMI 72 - CESTAT, NEW DELHI] held that mutual fund units being goods as per the definition of Section 65(5) of the Finance Act read with Section 2(7) of the Sale of Goods Act, stand at par with the stock and share and the same are to be treated as goods. In view of the above decision, we find merit in the contention of the appellants regarding imposition of penalties. By invoking the provisions of Section 80 of the Finance Act, the penalties imposed under Sections 76, 77 and 78 are set aside, otherwise the impugned order is upheld - Decided partly in favour of assessee.

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• 2014 (7) TMI 32
  

  Import of services - reverse charge - Business Auxiliary service – Appellant, exporter of Cotton fabrics, engaged agents to various European countries for canvassing orders and paid commission – Revenue contends that it was taxable under the provisions of rule 2(1) (d) (iv) of Service Tax Rules, 1994 - Commissioner (Appeals) set aside the portion of demand prior to 18.04.2006 - Held that:- dispute is now well settled that prior to introduction of section 66A in Finance Act, 1994, no demand for service tax from recipient of service under reverse charge mechanism as per rule 2 (1) (d) (iv) could be sustained. The position has been affirmed by Apex Court as reported at of UOI Vs Indian National Shipowners Association - [2009 (12) TMI 850 - SUPREME COURT OF INDIA] - already paid more than the actual tax liability which they need to have paid towards tax for the period from 18-04-06 to Sept 06. Appellant is not asking for refund of tax paid - Penalty set aside - Decided in favour of assessee.

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• 2014 (7) TMI 31
  

  Waiver of pre-deposit - nature of amount received - renting of immovable property services - Revenue contends that appellant had stated that agreement entered by appellant is not for renting of immovable properties but is for a business consideration / conducting and would not fall under the category of renting of immovable properties - Held that:- facts in this case are the agreements though contended by the appellant were for arrangement of business conducting and amenities agreement, prima facie, in our view the said agreement may fall under the category of renting of immovable property services. Coming to the submissions made by the Ld. Counsel as to bonafide belief, this needs to be gone into detail which in our view can be done by us at the time of final disposal of appeals. Be that as may be, by the retrospective amendment brought in by Finance Act, 2010, it can be presumed that the appellant was aware of the service tax liability atleast from that date. Keeping in mind appellant has deposited an amount of Rs.14.83 lakhs during the pendency of the proceedings before the lower authorities and prima facie holding that the appellant has not made out a case for complete waiver of the balance amounts involved, and as the issue is an arguable one, we are of the view that appellant should be put to further condition of depositing an amount - Conditional stay granted.

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