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Service Tax - Case Laws
Showing 81 to 100 of 166 Records
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2014 (9) TMI 594
Deletion of penalty u/s 80 - Intellectual Property Rights Service - service tax and interest was paid before issuance of show cause notice - bonafide mistake - tribunal deleted the penalty - high court confirmed the order of tribunal [2012 (11) TMI 652 - GUJARAT HIGH COURT] - SC dismissed appeal of the revenue after condoning the delay - Decided against the revenue.
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2014 (9) TMI 568
Refund of cenvat credit - Export of services or not - services provided from India or not - onsite work undertaken at customer’s premises - software development service - Rule 5 of the CENVAT Credit Rules, 2004 read with the Notification No. 05/2006-CE(NT) - export of service as provided in Rule 3(2) for the period post 27/02/2010 - Held that:- first condition (clause (a)) with regard to provision of service from India and its use outside India has not been satisfied. The services have been performed at overseas' customers' site by the subsidiaries of the Appellants, though they may be to the customers of the Appellants. However, these services have not been provided by the Appellants, but claimed to be provided by their subsidiaries. The agreement has been referred to in great details by the Tribunal and it arrived at a conclusion that there may not be any privity of contract as between the subsidiaries of the Appellants and customers, but the situs of service and its provision is both abroad. With the provision of service and site at which the service is provided the Appellants who are in India cannot be said to be involved. The service has been held to be not provided by the Appellants from India.
Tribunal was right in it's conclusion that the services provided do not satisfy the requirement of the Export of Service Rules, 2005 as prevailing prior to their amendment with effect from 27.02.2010. In such circumstances any wider questions or controversy need not be gone into and decided. The Written Submissions of the Appellants referred to the services in relation to immovable property and based on that the arguments are canvassed. We are of the view that there was no Rule 3(1) (ii) of the Export of Service Rules, 2005 as initially introduced. There was Rule 3(1)(i) and (iii). We are not in agreement with Mr.Sridharan that the business establishment of the service provider is in India and final consumption and consumer is outside India. We find that the provider of service is also a subsidiary outside India and recipient is also outside India.
Regarding alternative claim of refund under different provision - Held that:- Appellants had not invoked any specific provision and made an application under the same to claim refund. They could not have invoked Section 11B of the Central Excise Act, 1944 during the course of the proceedings. In the facts and circumstances of the present case Mr.Kantharia is right in urging that the reasons assigned in paragraph 5.9 of the impugned order by the Tribunal cannot be faulted. There is no application made in a prescribed format and time by the Appellants to claim the refund. The refund claim will have to be decided in accordance with the provisions and after the compliance is made with the procedural formalities set out therein. Today, we cannot entertain the argument alternatively made on the claim of refund without any such compliance leave alone any application. For all these reasons we do not find any basis for the alternate claim as well. In the event the Appellants wish to make any such claim it is open for them to invoke the provisions in that regard and as available in law - Decided against Assessee.
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2014 (9) TMI 567
Denial of refund claim - export of servcies - Notification No.6/2010-ST dated 27.02.2010 - Whether in the facts and circumstances of the case, the CESTAT was correct in holding that the Assessees satisfy the condition laid down for exports as defined in Rule (3) of the Export of Service Rules, 2005 in respect of onsite services rendered by them abroad for the period from 27.02.2010 onwards - Held that:- onsite services rendered by the Appellants abroad would qualify for being termed as export of service. Therefore, the findings of the Tribunal on this point cannot be termed as perverse or vitiated by any error of law apparent on the face of the record. The reasoning in the impugned order is, therefore, in consonance with the material produced including amendments to the concerned clauses and subrules. No substantial question of law arises - Decided against Revenue.
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2014 (9) TMI 544
Import of services - Business Exhibitions conducted abroad - Technical Inspections were done outside India - payments have been made by the appellants to parties located abroad - Held that:- Since, these services are performed outside India there is no service tax liability on the services in view of the above provisions. - Decided in favor of assessee.
Processing of Textile materials for chemical wash - Held that:- On scrutiny of the records of the appellants, it was noticed that the appellant had paid the amount towards ‘processing of textile materials for chemical wash’ charges to M/s. Testex, Swiss, Glancario and Reni Hendriks, Holand. So, there is no dispute of the fact that the appellant paid the charges for textile processing. Hence, they are eligible for exemption benefit under Notification No. 14/2004-ST dated 10.9.2004, as amended - Demand set aside - decided in favor of assessee.
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2014 (9) TMI 543
Waiver of pre-deposit of service tax, interest and penalty - Suppression of the value of taxable services - intention to evade payment of appropriate service tax - Held that:- appellant had received the show cause notice on 21.4.2010 issued by the jurisdictional commissioner demanding service tax. It is not in dispute that the appellant had not responded to the said notice. Subsequently, the appellant was called upon for personal hearing on 15.11.2011. However, by letter dated 14.11.2011, the appellant sought time to appear for the personal hearing. Hence, the personal hearings were fixed on 07.12.2011, 27.12.2011 and 18.01.2012. Since the appellant did not appear for the personal hearings, the Commissioner, with no other option, had passed the final order confirming the demand. In any case, no specific provision of law is alleged to have been violated by the Department, on the contrary, we find that a show cause notice has been issued and received by the appellant, for which no reply has been filed by the appellant. Thereafter, notices sent for personal hearing have been returned unserved as the door was locked. - Decided against assessee.
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2014 (9) TMI 542
Export of service or not - revenue contended that said advertisement and promotion activity was carried in India for the promotion of the money transfer business in India - according to revenue services in question were performed, delivered, received, used and exhausted in India - Appeal against the order of Tribunal [2012 (12) TMI 424 - CESTAT, DELHI (LB)] admitted by the high court.
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2014 (9) TMI 541
Waiver of the pre-deposit - tribunal directed the appellant to make pre-deposit of ₹ 50 lacs against the demand of ₹ 63,57,940/- - request for adjournment was not accepted by the tribunal - principle of natural justice - Held that:- Apparently the impugned order was passed without hearing the petitioner. In the order itself it was recorded that a request was made on behalf of the petitioner for an adjournment on the ground on inconvenience of the counsel for the petitioner. However, having regard to the fact that the appeal was filed long back around two years ago the CESTAT was not inclined to grant any adjournment and thus on the basis of the material available on record the impugned order came to be passed.
In view of the petitioner’s plea that it has not collected the disputed Service Tax and that the petitioner is hard pressed for funds, we are of the opinion that it is a fit case for modifying the condition imposed in the impugned order. - petitioner to deposit 50% of the Service Tax demand - decided partly in favor of assessee.
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2014 (9) TMI 540
Challenge to the order of the tribunal restoration of appeal - tribunal has dismissed the appeal for default owing to the failure to comply with the order on the applications for waiving the pre-deposit - Held that:- Such discretionary orders exercised by the Tribunal are not to be interfered with under Article 227 of the Constitution of India which is sought to be invoked by the petitioner in the instant case. - The enlargement of time sought for by the petitioner does not exceed ten months and every endeavour shall be made to have a lis disposed of on merits. - I am not prepared to hold by any stretch of imagination that the Tribunal has exceeded its jurisdiction in restoring the appeals for disposal on merits later. - Decided against the revenue.
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2014 (9) TMI 539
Waiver of pre-deposit - Whether CESTAT is justified in directing to deposit the 50% of Cenvat credit even after making an observation that “on the basis of the decisions referred to supra we find a prima facie case in favour of appellant’? - Held that:- The learned counsel for the appellant submit that the controversy on merits stands concluded in favour of the appellant. However, it is not necessary for the court to go into this question as the matter is still subjudice before the Tribunal. Taking into consideration that the Tribunal has recorded finding of prima facie case in favour of the appellant, we are of the opinion that the interest of the Revenue is protected, if the appellant is permitted to furnish bond to the extent of 50% of the basic Cenvat credit instead of asking the appellant to deposit said amount in cash. - order of tribunal modified.
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2014 (9) TMI 538
Business auxiliary services - assessee received Hi-Speed Oil from the refineries on payment of duty and added some fuel additives on HSD oil and marketed the same in the name and style of "Extra-Mile Super Diesel". - revenue contended that additives were used in order to promote/market their product - Held that:- assessee received the HSD oil from the refineries and added some fuel additives for marketing the same. - the addition of additives in their own units and selling to their customer, cannot be treated as a service provider. - no demand - decided against the revenue.
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2014 (9) TMI 537
Refund claim on realization that service tax was paid wrongly - The appellant had mistakenly paid service tax of ₹ 2,02,883/- on installation of raised pavement markers (road studs) for a National Highway during the material period. - unjust enrichment - Held that:- The appellant however, chose not to show the service tax amount in any of the invoices. Therefore, under Section 12B, the appellant will be deemed to have passed on the full incidence of tax to the service recipient inasmuch as the contrary has not been proved by the appellant.
There is nothing in the work order to show that the service recipient was not liable to pay service tax to the appellant, nor can the appellant evade a statutory liability on the strength of anything contained in the work order (contract). It is trite law that private parties cannot contract to evade or sidestep statutory obligations. The appellant was obliged under Section 12A to show service tax also in the relevant invoices but they did not choose to do so. - refund denied - Decided against the assessee.
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2014 (9) TMI 489
Availing cenvat credit while availing benefit of abatement notification no. 1/2006-ST - appellant is of the view that though the credit on common input services was taken but the same was not utilised while discharging duty liability under Notification No. 1/2006-ST. - Held that:- appellant agree to reverse the entire cenvat credit taken with respect to common services used for providing services under Notification No. 1/2006-ST. - prima-facie, appellant does not seem to have any case on reversal of CENVAT credit on common services. Appellant is, therefore, required to be put to certain conditions before remanding the case to the first appellate authority. It is directed that appellant shall deposit the entire credit taken on common input services utilised for providing taxable services for which benefit of Notification No. 1/2006-ST has been availed. - matter remanded back subject to pre-deposit of amount.
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2014 (9) TMI 488
Condonation of delay - delay of 40 days over and above the condonable period - delay in appeal before Commissioner (Appeals) - according to appellant, the said delay was on account of lapses on the part of counsel to whom the matter was entrusted and there was no deliberate intention. - Held that:- beyond six months from the date of service of the order impugned, Appellate Authority cannot consider application for condonation of delay and there is justification in rejecting such application filed by the appellant. - Decided against the assessee.
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2014 (9) TMI 487
Waiver of pre-deposit - Tribunal has directed the appellant to make pre-deposit of the basic tax component as well as 50% of the penalty under Sec. 78 and discrepancy of ₹ 12.00 lakhs between the petitioner’s own assessment of tax liability and the adjudicating authority’s determination. - Held that:- when the appeal is admitted for hearing and the order of the assessment is under scrutiny, unless the order of assessment reaches its finality, the question of initiation of penalty proceedings does not and cannot arise. - in view of insertion of the word or the Tribunal cannot ask to make pre-deposit in both at a time.
The pre-deposit of the penalty amount will be required when the order of the penalty alone is under challenge. But if there is a composite order namely assessment order, tax component and also penalty order like here, direction for pre-deposit of any portion of the penalty amount would result in injustice as well as hardship. Under this circumstance, we are of the view that the direction for pre-deposit of penalty component of the order has to be deleted and is deleted and the rest portion of the order would remain. - Decided in favor of assessee.
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2014 (9) TMI 486
Waiver of pre-deposit - Held that:- The appeal filed by the petitioner is now pending before the first respondent (CESTAT). It is for the first respondent to take up the appeal on merits. In case, the first respondent is of the view that pre-deposit cannot be waived, necessarily, the petitioner has to deposit the pre-deposit amount. When the appeal is pending before the first respondent, it is not open to the petitioner to challenge the very same order before this Court. - petition dismissed.
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2014 (9) TMI 485
Waiver of pre-deposit and stay of further proceedings for recovery proceedings - Held that:- Keeping in view the submissions advanced by the learned counsel for the parties and considering the provisions contained in Section 35F of the Act, and so also the fact that the petitioner is a statutory body functioning under the Administrative control of the Government of India, Ministry of Commerce and Industries, we are satisfied that the following order shall meet the ends of justice:
The petitioner shall deposit the entire amount due demanded within a period of eight weeks from today. Failing which, their appeal shall stands dismissed for non-prosecution. If the amount as aforementioned is deposited within the extended time, the Appellate Tribunal shall decide the appeal on merits in accordance with law.
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2014 (9) TMI 484
Waiver of penalty u/s 80 - penalty imposed u/s 78 for short payment - GTA service - On scrutiny of Service Tax returns, it was observed that the Service Tax was paid on much lesser amount as compared to the amount shown in the head of freight & cartage resulting in short payment of service tax - Held that:- Proper service tax was not paid as lesser amount of service tax was paid resulting in short payment of service tax amounting to ₹ 7,83,266/-. These discrepancies showing short payment of service tax came to surface when anti-evasion wing detected the evasion. Mens rea was manifested as respondents did not deposit the service tax of their own and non-payment of service tax continued for years.
Further no bonafide could be proved as no reasonable ground could be shown by the respondent. Bombay High Court judgement in the case of Riya Travels and Tours Vs. Union of India [2010 (7) TMI 774 - BOMBAY HIGH COURT] is in the favour of revenue as omission was not bonafide as it was detected by visiting officers of DGCEI. - invoking section 80 and waiving penalty is not proper - Decided against the assessee.
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2014 (9) TMI 483
Cargo Handling Service - inclusion of the estimated cost of transportation of goods by barges from mother vessel to jetty or vice versa in the value of services rendered. - On the other hand, the main contention of the applicant is that transportation is a separate activity and cannot be considered as “Cargo Handling Service”. Before 2009 though there was Service Tax on transportation of goods by road, air or railways, but there was no Service Tax for transportation of goods by water ways. - The main issue to be considered in this case is whether the activity of unloading of goods from ship to finally trucks/rails would be considered as a single service or it can be split into two parts. The first one, cargo handling and the second one transportation of the cargo within the port area.
Held that:- our prima facie view is that the services provided by them cannot be considered as a port service atleast before the definition was amended w.e.f. 1-7-2010. Nature of services is relating to handling of goods and can be provided in port area as also in place outside port. Prima facie the services provided within the port area if covered by the definition of various services would be covered by that service if the same is not covered by the definition of “Port Service/Other Port Service”. Even applicant was paying service tax on certain activities under “Cargo Handling Services” from 16-8-2002 to 30-6-2003. From 1-7-2003, on the same activity, applicant started paying tax under other port service.
Applicants have not made out a prima facie case on merits (except in case of transportation from one port to another which forms minor part of the demand) - No financial hardships has been pleaded - stay granted partly.
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2014 (9) TMI 482
Supply of manpower service or not - harvesting of sugarcane and transportation of sugarcane by trucks, tractors, head loads, etc. to the sugar factory - Held that:- the consideration is paid not on the supply of manpower but on the sugarcane supplied on tonnage basis. If an efficient contractor engages less manpower, he will make more profits while an inefficient contractor engaging more manpower would make less profits. In other words, since the consideration is received on the quantity of sugarcane delivered, the essential nature of service is the harvesting and supply of sugarcane. How the service is rendered is not relevant for classification of the service.
In view of the decisions of this Tribunal in the case of Amrit Sanjivni Sugarcane Transport Co. Pvt. Ltd. [2013 (8) TMI 58 - CESTAT MUMBAI] and Samarth Sevabhavi Trust [2013 (8) TMI 218 - CESTAT MUMBAI], we hold that the impugned demands are not sustainable in law. - Decided in favor of assessee.
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2014 (9) TMI 480
Valuation of service - Whether abatement of cost of material replaced for repair of transformer as stipulated under Notification No. 12/2003. S.T. dated 20.06.2013 is admissible to the respondent or service tax is liable on gross value of bill charges from customers as laid down under Section 67 of the Finance Act, 1994 - Held that:- in the invoices issued by the assesssee, the value of goods used, such as transformer oil and service charges are shown separately and in respect of the supply of consumables used in providing the service of repair, sales tax or, as the case may be, VAT is paid. The Tribunal, in this factual situation, observed that when the value of goods used was shown separately in the invoices on which sales tax or VAT has been paid, the service tax would be chargeable only on the service/labour component and the value of goods used for repair would not be includible in the assessable value of service. In the grounds which have been formulated by the revenue, the admitted position of fact has not been disputed, as stated in the order of the Tribunal. Hence, the appeal will not give rise to any substantial question of law particularly having regard to the earlier judgment of the Division Bench in Balaji Tirupati Enterprises [2014 (1) TMI 404 - ALLAHABAD HIGH COURT] - Decided against Revenue.
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