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Service Tax - Case Laws
Showing 61 to 80 of 209 Records
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2014 (7) TMI 850
Waiver of predeposit of Service Tax - quantification/computation of the demand - Held that:- from the records it is found that the CAs Certificate and other evidences now produced by the ld. CA for the Applicant, were not placed before the ld. Commissioner. In the result, in the interest of justice, at this stage, the offer to deposit ₹ 10.00 lakh seems to be reasonable. Consequently, we direct the Appellant to deposit ₹ 10.00 lakh within a period of four weeks from today and report compliance directly, to the ld. Commissioner. matter remanded back - Decided in favour of assessee.
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2014 (7) TMI 849
Reversal of wrongly taken credit done - whether interest is chargeable from the date when it was taken upto the date of its reversal - CENVAT Credit taken on dumpers - Held that:- Cenvat Credit was reversed before utilization is not in dispute - Interest is compensatory in character, and is imposed on an assessee, who has withheld payment of any tax, as and when it is due and payable. The levy of interest is on the actual amount which is withheld and the extent of delay in paying tax on the due date. If there is no liability to pay tax, there is no liability to pay interest. Section 11AB of the Act is attracted only on delayed payment of duty i.e., where only duty of excise has not been levied or paid or has been short levied or short paid or erroneously refunded, the person liable to pay duty, shall in addition to the duty is liable to pay interest. Section do not stipulate interest is payable from the date of book entry, showing entitlement of Cenvat credit. Interest cannot be claimed from the date of wrong availment of CENVAT credit and that the interest would be payable from the date CENVAT credit is taken or utilized wrongly - Following decision of Commissioner of Central Excise & ST, LTU Bangalore Vs. Bill Forge Pvt. Ltd. [2011 (4) TMI 969 - KARNATAKA HIGH COURT] and U.O.I. Vs. Indo Swift Laboratories [2011 (2) TMI 6 - Supreme Court] - Decided in favour of assessee.
Valuation - Inclusion of Value of free supplies of diesel - Held that:- As regards the demand of Service Tax on the value of the free supplies of diesel is concerned, the Larger Bench of this Tribunal in the case of M/s. Bhayana Builders Pvt. Ltd. Vs. Commissioner Service Tax, Delhi [2013 (9) TMI 294 - CESTAT NEW DELHI] has held that the value of free supplies is not includible in the gross consideration received by the Service provider for rendition of taxable service. Consequently the demand of ₹ 78,17,056/- relating to free supplies of diesel is not sustainable. - Decided in favour of assessee.
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2014 (7) TMI 848
Waiver of pre deposit - Demand of service tax - Security services provided by Superintendent of police - service provided for IPL match - Payment not received for services received - Held that:- during the impugned period, service tax liability arises at the time of remuneration received towards service provided as no amount has been received by the appellant, therefore, appellant has made out a case for waiver of pre-deposit - matter remanded back - Commissioner (Appeals) to decide the issue on merits without insisting on pre-deposit - stay granted.
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2014 (7) TMI 830
Refund claim of service tax paid earlier - unjust enrichment - assessee is entitled for self adjustment u/r 6(3) of excess service tax paid - revenue argued that assessee did not opt for provisional assessment u/s 6(4) - appellant has already refunded the excess service tax along with credit bill to its customers. - Period of limitation for self adjustment - Held that:- Rule 6(3) is applicable not only to the case of excess payment of service which can be made good in subsequent period and bit also to the case where taxable values are not ascertainable for longer period - sub-rule 6(3) is not dependent on provision of sub-rule 6(4). Moreover there is no time limit prescribed under sub-rule 6(3) for making adjustment - Matter remanded back - Decided in favour of assessee.
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2014 (7) TMI 829
Extension of stay order - power of tribunal to extend stay beyond 365 days - appeals could not be disposed of within time specified in Section 35C (2A) - Held that:- High Court ruling in Maruti Suzuki (2014 (2) TMI 1037 - DELHI HIGH COURT), declare this legal position, unequivocally; and after analysis of the amended provisions of the Income Tax Act (which are in pari materia provisions of the Excise Act) and duly considering the judgement of the Supreme Court in Kumar Cotton Mills Pvt. Ltd. [2005 (1) TMI 114 - SUPREME COURT OF INDIA] - In light of exposition of the legal position qua the judgement in Maruti Suzuki, it must be concluded that the provisions of Section 35C (2A) of the Central Excise Act eviscerate the power of (CESTAT) to extend operation of a stay granted and extended beyond a total period of 365 days. Delhi High Courts distinguished the judgement of the Bombay High Court in Income Tax Vs. Ronak Industries - [2010 (11) TMI 461 - Bombay High Court] which followed its earlier judgment in Narang Overseas P. Ltd. Vs. ITAT & Others - [2007 (7) TMI 5 - HIGH COURT, BOMBAY] - Extension of stay denied.
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2014 (7) TMI 828
Condonation of delay - Tribunal declined to condone delay holding gross negligence on part of assessee - Held that:- a perusal of the typed set of papers would reveal that the relevant papers pertaining to the application filed before the Tribunal for condonation of delay is not enclosed therein. This attitude of the appellant would only go to show that the appellant is not serious in pursuing the matter and is only trying to drag on the proceedings - document, viz., the application for condonation of delay, is a very relevant document, which is very much required for adjudicating the present appeal, as the said document alone would show the stand taken by the appellant before the Tribunal for condoning the delay. In the absence of the said vital document, the veracity of the stand taken by the appellant before this Court itself becomes questionable. The non-furnishing of the abovesaid document along with the typed set of papers would by itself show the callousness with which the appellant is dealing with the matter, which would stand proof of the fact that the appellant is not interested in pursuing the matter - Decided against assessee.
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2014 (7) TMI 827
Waiver of pre deposit of ₹ 6,50,00,000 - booking commission, service commission and warranty services - Availment of CENVAT Credit - Held that:- Though the adjudicating authority has raised the demand against the said services, the Tribunal has rightly not analysed in detail the provisions related to such services, leaving it to be decided at the time of substantive adjudication. The question raised is that of interpretation of statutory provisions. Therefore, any observation either way by the Tribunal or by this court may prejudice the parties to the lis. Therefore, a detailed examination on the question of interpretation of statutes not be commented upon at the stage of waiver of pre-deposit.
The appellant has already been granted complete waiver of annual maintenance charges and 50 per cent. of the duty demanded against booking commission, service commission and warranty services. The discretion exercised by the Tribunal cannot be said to be unjust or irrational which may give rise to any substantial question of law. We may notice that the appellant has not setup a case of financial hardship - appellant is permitted to deposit the said amount within a period of six weeks. - Further relief in stay denied.
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2014 (7) TMI 826
Valuation - Whether the value of free supply of materials like cement, steel etc. by the service receiver, be included for the discharge of service tax liability or not - Held that:- Following decision of Bhayana Builders (P) Limited [2013 (9) TMI 294 - CESTAT NEW DELHI] - Order passed is unsustainable - Decided in favour of assessee.
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2014 (7) TMI 825
Condonation of delay for filing of an appeal before commissioner (appeals) - Inordinate delay of 228 days - Held that:- As per the provisions of Section 85 (3A) of the Finance Act, 1994, an appeal is required to be presented within two months from the date of receipt of the impugned order before the Commissioner, Central Excise (Appeals), after the amendment which took place by the Finance Act, 2012, made effective from 28.05.2012 - impugned order dated 16.07.2012 issued on 20.07.2012 was received by the appellant on 26.7.2012 and accordingly an appeal was required to be presented on 15.03.2013, which resulted into delay of 5 months and 18 days.
Commissioner, Central Excise (Appeals) can condone the delay of maximum one month if sufficient cause has been shown by the appellant. As period of delay in filing appeal in the present case is 5 months and 18 days, hence it is beyond the powers vested to me under the statute (Proviso to Section 85(3A) of the Finance Act, 1994) under which a maximum period of one month of delay can be condoned by the Appellate Authority - No reason to condone the delay in filing the same and thus, hold the appeal filed by the appellant as time barred - Following decision of Singh Enterprises [2007 (12) TMI 11 - SUPREME COURT OF INDIA] - Condonation denied.
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2014 (7) TMI 824
Levy of penalty - benefit of reduced penalty u/s 78 whereas service tax was deposited without interest before issue of SCN - Held that:- no reason to reduce the same as the appellant has failed to deposit the interest amount along with service tax before the issue of show-cause notice or within the time-limit prescribed under the Act. In such a case, no infirmity in the order of the Commissioner (Appeals) - Decided against assessee.
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2014 (7) TMI 823
Demand of service tax - Wrong mention of taxable services - Reflection of excess tax liability - Commissioner remanded matter back - Held that:- orders of the Assistant Commissioner in implementing the remand order and dropping the demand and refunding the pre-deposit would show that there is either lack of coordination between the offices of the Department or the Assistant Commissioner has been negligent. When an appeal has been filed against the remand order, the proper course for the Assistant Commissioner was to keep the matter pending till the appeal filed by the Revenue was decided.
Even if the matter is remanded to the Commissioner (Appeals) now, if no appeal has been filed by the Revenue against the Assistant Commissioner's order, the order of the Tribunal cannot be implemented. In any case, no harm has been caused since if the Revenue was aggrieved on merits of the Department, appeal would have been and may have been already filed against the Assistant Commissioner's order which would in due course get decided finally in its turn. Therefore any decision taken in this remand order is not going to affect the Revenue adversely.
In this case also what was required to be done by the original adjudicating authority was to verify and quantify the value of taxable services and service tax payable after going through the certificate issued by chartered accountant. Therefore in this case also it can be said that the remand is for the purpose of quantification. Decided against Revenue.
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2014 (7) TMI 822
Waiver of pre-deposit - Receipt of IPR service from U.S. firm - Revenue distinguished case law relied upon by assessee - Held that:- transfer of technical know-how took place when it was not a taxable services and the consideration was paid when the activity became taxable. As such, the service cannot be held to have been rendered at the time when it became taxable - the fact that the payment was made one time in the case of Denso Haryana Pvt. Ltd. case whereas royalty is being paid on the yearly basis in the present case cannot be adopted as a criteria to distinguish the ratio of law declared in the case of Denso Haryana Pvt. Ltd. Admittedly the royalty is being paid in terms of contract entered in the year 2002 when IPR was not a taxable service. As such, the appellant has a strong prima facie case in his favour, requiring dispensation of pre-deposit - Following decision of Denso Haryana Pvt. Ltd. v. CCE, Delhi-III reported in [2014 (7) TMI 752 - CESTAT NEW DELHI] - Stay granted.
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2014 (7) TMI 821
Waiver of pre-deposit - Intellectual property rights - Purchase of trademark of foreign company under permission obtained from RBI - Held that:- appellant has made out a prima facie case against the impugned demand - It was found that there was no actual purchase of brand. This finding was recorded after a reading of the Deed of Transaction dated 12-9-2006, which we have also perused. The recitals of that document prima facie indicate absolute transfer of trademarks and Foster’s Brand Intellectual Property from the foreign company to the assessee. It is also on record that the appellant qua owner of the trademarks obtained registration in India under the Trademarks Act. It is also on record that they paid stamp duty on the entire consideration paid by the appellant-company for purchase of trademarks. The RBI’s permission was also for such purchase of the trademarks. Thus the documentary evidence in this case is abundantly in support of the appellant’s case. Hence there will be waiver of pre-deposit and stay of recovery in respect of the adjudged dues - Stay granted.
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2014 (7) TMI 795
Demand of differential duty - Service provided before 10.09.2004 and payment for service received after 10.09.2004 - Held that:- Certificates from the service recipients now produced before the bench were not produced before the lower authorities. As the issue relates only to the period when the services were provided and the period when consideration of the services was received - Therefore, In the interest of justice, the matter is required to be remanded back to the adjudicating authority. Appellant should furnish all the required documents to the adjudicating authority to establish that periods when services were provided, were before the period when their activities were not liable to service tax - Decided in favour of assessee.
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2014 (7) TMI 794
Condonation of delay - demand of service tax - Mandap keeper service - Delay due to ill health of spouse of proprietor - Commissioner declined to invoke discretion - Held that:- Condonation of delay particularly in the circumstances pleaded by the appellant should be liberally considered. It is perverse for the learned appellate Commissioner to hold that care of a spouse and the need for her attention is not a relevant criterion. The discretion to condone the delay authorised to the appellate Commissioner is not the personal discretion of the Commissioner; it is the discretion of the law and should be examine appropriately as dictates of law require. The order is whimsical inviting invalidation and is accordingly set aside - Decided in favour of assessee.
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2014 (7) TMI 793
Valuation of goods - whether the materials supplied free of cost by the service recipient used in the construction would be included in the taxable value - Held that:- Following decision of Bhayana Buildings (P) Ltd. Vs. Commissioner of Service Tax, Delhi [2013 (9) TMI 294 - CESTAT NEW DELHI] - It is held that the value of goods and materials supplied free of cost by service recipient to the provider for incorporation in constructions would neither constitute non-monetary consideration to service provider nor form part of gross amount would be outside the taxable value - matter remanded back - Decided in favour of assessee.
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2014 (7) TMI 792
Club or Association service - principal of mutuality - export promotion council - period from April 2008 to March 2009 - Held that:- Following decision of Federation of Indian Chambers of Commerce and Industry (FICCI) vs. C.S.T., Delhi [2014 (5) TMI 183 - CESTAT NEW DELHI] - Order passed by Commissioner (Appeals), New Delhi quashed - Decided in favour of assessee.
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2014 (7) TMI 791
Restoration of appeal - tribunal dismissed the appeal for non compliance of the pre-deposit, which was ordered by the CESTAT - CESTAT has extended the time once - Held that:- Considering the financial difficulties expressed and the submission of the learned counsel appearing for the appellant, we are of the view that the substantial questions of law raised above, can be answered infavour of the appellant by granting six weeks further time to deposit of demand with interest - on such deposit, the appeal shall be restored and dispose of the same in accordance with law.
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2014 (7) TMI 790
Denial of CENVAT Credit - Non production of invoices on which credit was availed - Invoices which were produced were not in the name of assessee - Partial amount allowed by Original authority - Held that:- original adjudicating authority had considered the invoices submitted and in fact had allowed more than ₹ 40,000 credit to the appellant. The balance was disallowed on specific ground that the invoices not being in the name of the assessee or proof of payments have not been produced - both these issues have not been contested nor rebutted either before Commissioner (Appeals) or before this court. Since the appellants have failed to rebut the findings of the original adjudicating authority, the appellant has no case on the merits. Further from the details of personal hearing and the history of the approach of the appellant, it becomes clear that they were not serious in prosecuting the appeal - Decided against assessee.
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2014 (7) TMI 789
Revision of an order passed after remand back of the order by the Commissioner (appeal) to the adjudicating authority - Valuation - Interior Decorator’s Service - abatement of cost of materials from the gross value - Notification No. 12/2003-S.T - appellate authority held that the assessee should adduce evidence in this behalf to the original authority so that the said authority could requantify the demand of service tax - Held that:- Order passed by the learned Commissioner (Appeals) was not challenged by the department. The appellate Commissioner clearly found a case in favour of the assessee and accordingly acceded to their claim for the benefit of Notification No. 12/2003-S.T. subject, of course, to proof of compliance with the conditions attached thereto. - The department had no grievance against this view. - It was this view which was translated into action by the Addl. Commissioner by requantifying the demand of Service Tax. By taking up the Addl. Commissioner’s order for revision under Section 84 of the Act, the learned Commissioner was virtually interfering with the Appellate Commissioner’s decision which had, by then, attained finality for want of challenge. - Decided in favour of assessee.
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