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Service Tax - Case Laws
Showing 1 to 20 of 151 Records
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2015 (2) TMI 1379
CENVAT Credit - amount to be reversed attributable to the trading activity of the appellant in respect of which cenvat credit is not admissible - HELD THAT:- If services are identifiable to have been used only for providing dutiable services exclusively, there is no need to reverse any portion of the credit on the basis of proportion of trading activity to the total turnover or even for exempted services. Since the calculation did not take this aspect into account then matter has to go back for fresh consideration.
The impugned order is set aside and the matter is remanded to the original adjudicating authority for fresh adjudication after giving reasonable opportunity to the appellants to present their case and call additional evidences in support of the case - Appeal allowed by way of remand.
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2015 (2) TMI 1297
CENVAT Credit - capital goods/inputs - towers, towers parts, cabin, cabin parts, medi-claim services and goods other than towers, pre-fabricated buildings and shelters - period involved in these appeals is 2005 to 2006 and 2007 to 2008 - time limitation - Held that:- The rules do provide for availment of Cenvat credit on capital goods as well as inputs - In the cases in hand we find that the towers and shelters, which were received by the appellants at site were not capital goods in the form as they were received, inasmuch as they were covered under Chapter 73, the pre-fabricated shelters were covered under Chapter No. 94. The definition of capital goods do not include these two chapters in the scope, for the eligibility to avail Cenvat credit.
The ratio of the decision of the Hon'ble High Court of Bombay in the case of Bharti Airtel Ltd., [2014 (9) TMI 38 - BOMBAY HIGH COURT] as regards the eligibility to avail Cenvat credit would be directly applicable in all these cases - Their Lordships after considering all the detailed submissions made by the counsel before them and considering various case laws, came to a conclusion that Cenvat credit cannot be availed by the appellant therein either under the category of capital goods or inputs on the towers or pre-fabricated buildings - the issue is now squarely covered by the decision of the jurisdictional High Court, which is binding on us and is in favour of Revenue.
The confirmation of demand of ineligible Cenvat credit and interest thereof on towers and pre-fabricated buildings within the limitation period are upheld in respect of all the appellants.
Extended period of limitation - Held that:- The issue of availment of Cenvat credit on the towers and pre-fabricated buildings and shelters was being disputed before the various forum and hence all the appellants could have entertained a bonafide belief that they were eligible to avail Cenvat credit of duty paid on towers and pre-fabricated buildings/shelters - extended period of limitation should not be invoked - Demand of ineligible Cenvat credit which is confirmed along with interest, by invoking extended period is set aside in respect of all the appellants.
Penalty - Held that:- As the issue was of are interpretative nature i.e., as to eligibility of Cenvat credit or otherwise on the towers and the building and had to be settled in the hands of the Hon'ble High Court, the appellants could have entertained a bonafide belief. Hence, all the penalties imposed on all the appellants herein are set aside by invoking the provisions of Section 80 of the Finance Act, 1994.
Appeal disposed off.
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2015 (2) TMI 1288
CENVAT Credit - duty paying documents - Revenue entertained a view that the documents on the basis of which the respondent has taken the credit were not proper documents and the invoices issued by RCL, on the basis of which the respondent has taken the credit, were not covering the consignments in question - Held that:- As observed by Commissioner (Appeals), there is no doubt that the respondents have received the goods directly from Chennai and have used the same in the manufacture of their final product. As such, the procedural and technical objections raised by the Revenue cannot be appreciated - appeal dismissed - decided against Revenue.
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2015 (2) TMI 1275
Demand of service tax - sharing of profit - share of revenue paid to the appellant for the services jointly provided by the applicant along with M/s. Geojit Commodities Ltd. - Held that: - M/s. Geojit Commodities had been discharging service tax under the category of forward contract service regularly and if tax were to be collected from the appellant it would amount to taxing the same service twice - reliance placed in the case of VIJAY SHARMA & CO. VERSUS. COMMISSIONER OF CENTRAL EXCISE, CHANDIGARH [2010 (4) TMI 570 - CESTAT, NEW DELHI], where it was held that the same service cannot be taxed twice - appeal allowed.
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2015 (2) TMI 1249
Maintainability of petition - alternative remedy of arbitration and appeal etc. - Held that: - the petitioners have to file an appeal against the order assessing the petitioners to service tax, delay in filing the appeal may be condoned - the writ petition is dismissed as withdrawn with liberty as prayed.
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2015 (2) TMI 1238
Maintainability of appeal - territorial jurisdiction - the respondent-assessee has its manufacturing Unit located within the Union Territory of Daman - Held that: - In view of clause (b) of Section 36 of the Central Excise Act, 1944, which contains definition of the term High Court in relation to Union Territory of Daman & Diu and Dadra & Nagar Haveli, the jurisdiction would be of High Court of Bombay. In that view of the matter, this Tax Appeal is not maintainable before the Gujarat High Court and Gujarat High Court does not have any territorial jurisdiction over the matters decided with regard to Union Territory of Daman & Diu and Dadra & Nagar Haveli irrespective of the fact that the Tribunal is situated at Gujarat - Appeal is dismissed for want of territorial jurisdiction.
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2015 (2) TMI 1235
CENVAT credit - input service - commercial construction services - Rule 2(l) of the CCR - Held that: - service which is used in relation to setting up of factory or an office, relating to such a factory is ‘input service’ - As construction service used by the respondent is only for setting up of their factory, therefore as per the provisions of Rule 2(l) itself allowed the appellant to avail CENVAT credit on these services of service tax paid by them - credit allowed - appeal dismissed - decided against Revenue.
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2015 (2) TMI 1226
Validity of the appellate order dated 26.3.2014 passed by the Commissioner (Appeals) - Refund claim - unutilized input service credit - Held that: - This appeal, as already noted earlier, arises out of the Order-in-Original dated 31.10.2013 which was passed on a refund claimed by the assessee pursuant to the earliest appellate order dated 20.5.2009 and during the currency of operation of that appellate order (before its demise by the Final Order of the Tribunal dated 19.5.2014). It is axiomatic that judicial discipline demands unreserved fidelity by lower and administrative agencies to appellate orders. Since the appellate order dated 20.5.2009 had allowed assessee's refund claim in full and Revenue's application for stay was rejected by this Tribunal in Revenue's appeal No. ST/779/2009, the Assistant Commissioner could only have granted refund claimed by the appellant. He had no adjudicatory jurisdiction as he had become functus officio after passing the order dated 24.2.2009. In any event, the appellate order dated 20.5.2009, did not reinvest adjudicatory jurisdiction in the Assistant Commissioner - the order dated 31.10.2013 is patently incompetent ab initio - appeal allowed - decided in favor of appellant.
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2015 (2) TMI 1225
Refund claim - accumulated CENVAT credit - Rule 5 of CCR, 2004 - various input services - Held that: - Since eligibility of the services has been considered in the decisions cited by assessee, I find that the assessee is eligible for refund claimed by them - Appeal allowed - decided in favor of appellant.
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2015 (2) TMI 1188
Waiver of pre-condition - deposition of ₹ 60 lakhs for hearing the appeal - appellant is a service provider in construction contracts - in respect of contracts in question only 20% of the value of construction contracts denoted the service components - Held that:- the Court is of the opinion that prima facie the appellant’s submission that 20% of the gross receipts of the work orders relates to service components, is the subject matter of the merits of the appeal. In these circumstances, the direction to deposit ₹ 60 lakhs, based on the adjudication order that abatement of 67% of the amount under the Notification No. 1/2006-S.T. was not available, itself requires to be gone into. In these circumstances, the direction to pay ₹ 60 lakhs with proportionate interest is hereby modified; instead, the appellant shall deposit ₹ 20 lakhs as a pre-condition for hearing of its appeal. The said amounts shall be paid within six weeks from today. - Decided partly in favour of appellant
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2015 (2) TMI 1176
Waiver of pre-depoist - undue hardship - financial hardship - Held that:- We are in disagreement with the finding of the learned Tribunal that financial hardship is not a criteria for considering the prayer for waiver of pre-deposit of Service Tax. It is wrong to hold that only the prima facie case is the criteria in the matter of waiver of pre-deposit. By virtue of Section 86(7) of Service Tax, the provision of Section 35-F of the Central Excise Act is applicable.
Order of tribunal set-aside - matter remanded back to decide the issue afresh - Decided in favor of appellant.
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2015 (2) TMI 1167
Waiver of pre-deposit - Amount of service tax liability, interest thereof and penaltied imposed - Amount received are not for service rendered - Applicant submitted that amount received towards incentives from Mahindra & Mahindra Ltd. are target based and on sale of the vehicles - Held that:- the issue needs deeper consideration as to come to a conclusion that incentives which are given to the applicant are for the sale of vehicles by the Mahindra & Mahindra or otherwise. It is seen from the letter of Mahindra & Mahindra, the manufacturer, indicates that an amount for incentives have been credited to the account of the applicant for various sales promotion schemes, incentives and support to boost the sales of your dealership. Therefore, the issue needs deeper consideration though the applicant would rely on the decision of CST, Mumbai-I Vs. Sai Service Station Ltd. [2013 (10) TMI 1155 - CESTAT MUMBAI](T) wherein it has been held that sales/target incentive is not taxable. Since, factual matrix has to be gone into detail, the applicant has not made out a prima facie case for complete waiver. The applicant should put to condition for hearing and dispose of the appeal. - Complete waiver not granted
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2015 (2) TMI 1166
Denial of Cenvat credit - Service tax paid for the rent of factory premises - No nexus with the manufacturing activity of the respondent - Held that:- no person shall answer in affirmative as the factory is directly related to the manufacturing activity of the assessee. This fact has been ignored by the Revenue while proposing to file this appeal before this Tribunal. On going through the Review order, it is found that they have not given any credence to the decision of Hon’ble High Court of Bombay in the case of CCE, Nagpur Vs. Ultratech Cement [2010 (10) TMI 13 - BOMBAY HIGH COURT]. In these circumstances, the impugned order does not have any infirmity and is upheld. - Decided against the revenue
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2015 (2) TMI 1134
Period of Limitation - Refund claim - Appellant filed refund claim for the period of 01.10.2007 to 31.12.2007 on 16-06-2008 which was beyond time limit of sixty days but after revenue's claim of time-barred it contended that this is a re-submission made after rectification of deficiencies in response to the letter of the Assistant Commissioner dated 22.5.2008 and actual claim was filed on 28.2.2008 - Held that: The application filed on 28.2.2008 did not contained the amount of refund which they sought to claim and also the classification of various input (taxable) services in respect of which the refund was claimed. The claim was also not accompanied with any documents showing payment of service tax and other documents required to be enclosed alongwith with the refund claim as per the condition laid down under the said notification. As per Notification No. 41/2007-ST dated 06.10.2007, the refund claim was required to be accompanied with the documents “evidencing export of goods, payment of Service Tax on the specified services for which claim for refund of Service Tax paid is filed and copy of written agreement entered into by the exporter with the buyer of said goods.” In these circumstances it can not be held that the appellants had filed a “refund claim” (even a defective one) on 28.2.2008 and that what they did on 16.6.2008 was to re-file it after removal of defects. Therefore, the application filed on 28.2.2008 can by no stretch of imagination be called a refund claim (defective or otherwise) and held that the appellants filed the refund claim for the first time only on 16.6.2008 which is clearly beyond the prescribed time limit. - Decided against the appellant
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2015 (2) TMI 1130
Levy of service tax on the activity of washing of coal - Tribunal held that washing of coal was a mining activity amenable to service tax with effect from 1.6.2007 after amendment and not earlier. - It is argued that, the Tribunal exceeded its jurisdiction in deciding the appeal on a completely different issue not urged by the parties before it. The Respondent had admitted liability at least from 16.6.2005 after inclusion of the word 'processing', after the word 'production' in the definition of Business Auxiliary Service. The order of the Tribunal therefore calls for interference as naturally the Respondent will now claim refund for the period that it voluntarily paid service tax from 16.6.2005 to 1.6.2007.
Held that:- The issue is not required to be answered, as it has become academic in the facts of the case and is left open for consideration in an appropriate case in view of the specific submission on behalf of the Respondent that the Tribunal has not directed refund of service tax paid from 16.6.2005 till 1.6.2007 and neither will they seek refund for the period having already passed the liability to their customers.
No merit in the appeal - Decided against the revenue.
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2015 (2) TMI 1112
Cenvat Credit - Tribunal held that the respondent shall be deemed to be an output service provider under Rule 2(p) of the Cenvat Credit Rules, 2004 (hereinafter referred to as ‘the Rules’) and was therefore entitled to Cenvat credit for the Service Tax paid by it prior to the period 5-3-2004. - Held that:- It is an undisputed position that prior to 5-3-2004 the respondent was not an output service provider. It became an output service provider subsequent to that date after it entered into a MOU with M/s. Vallab Steels Ltd. for rendering output service. If prior to the same, the Respondent paid Service Tax on the ground that M/s. JFE Engineering Corporation, a company incorporated in Japan, from whom it received input service was not liable to pay tax and subsequently it was held that the Respondent was not liable to pay Service Tax as a deemed output service provider under the Service Tax Rules, its remedy to seek a refund, if entitled in the law, is a completely separate matter.
The Rules having come into force on 10-9-2004 only, and not having been made retrospective in operation, the Tribunal erred in holding that during the relevant period prior to 5-3-2004, the respondent would be deemed to be an output service provider under Rule 2(p) giving it retrospective effect. The Tribunal therefore erred in ultimately holding that availment of credit was permissible in view of the subsequent extended definition of output service which came into force on 10-9-2004 much after the period in question prior to 5-3-2004. - Credit not allowed - Decided against the assessee - In favor of revenue.
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2015 (2) TMI 1111
Refund Claim - Relevant Date - Period of limitation - GTA service - Held that:- the relevant date, as defined in sub-section (6) of Section 73 had to be with reference to Section 71A, and not under Section 71. In the present case, the appellant is a ‘service recipient’, and under Rule 2(d)(xii), it was liable to pay service tax for the period 16-11-1997 to 2-6-1998. The provision was struck down, on which a retrospective amendment was made, which was held valid by the Supreme Court in Gujarat Ambuja Cement Ltd.
For the relevant period in the present case, the appellant, as an assessee, was required to file return under Section 71A, and not under Section 71, and thus, the period of show cause notice had to be calculated from the date, under Section 71A, and not Section 71.
In the present case, the appellant was a service recipient. He was required to file returns for the period between 16-11-1997 to 2-6-1998, and thus, the provisions of Section 71A will be attracted, and not provisions of Section 71. - Refund allowed.
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2015 (2) TMI 1108
Waiver of pre-deposit - undue hardship - challenge to the order of Tribunal - Held that:- Except for reciting that it would cause undue hardship, there is no material pleading with regard to the circumstances or nature of the undue hardship that would be caused. We therefore find no reason to interfere with the impugned order dated 4-12-2014. If the Appellant is of the opinion that a part of the adjudicated liability had already been deposited, it may bring it to the attention of the Tribunal itself. In that event subject to the satisfaction of the Tribunal, unless already considered, nothing prevents it from passing appropriate orders for modification or clarification of its order dated 4-12-2014. - Appeal dismissed.
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2015 (2) TMI 1064
Extended period of limitation - discrepancy in filing of return - Held that:- correct service tax liability was indicated in the ST-3 returns filed with the Department. Short payment of service tax, if, any was apparent from the figures shown in the ST-3 returns. That once correct calculations have been shown by the appellant then, there cannot be any intention to evade payment of service tax, therefore, extended period cannot be invoked and that show cause notice was time barred. It is observed from the relied upon case laws that the issue involved is no more res-Integra. In the case of Commissioner vs. Megnmani Dyes & Intermediate Ltd. (2013 (6) TMI 141 - GUJARAT HIGH COURT) it has been observed by jurisdictional Gujarat High Court that if, prescribed returns are filed by an appellant giving correct information then extended period cannot be invoked. In the present proceedings also prescribed ST-3 returns were filed by the appellant and it is not disputed that correct calculations of service tax were not shown and differential tax payable was apparent from the figures furnished by the appellant. Under the above factual matrix available on record appellant cannot be held to have suppressed any information with intention to evade service tax. Accordingly, it is held that extended period cannot be invoked in the present proceedings and appeal filed by the appellant is required to be allowed on time bar, as demand is for the period 2005-06 dt 2006-07 and show cause notice was issued on 1/2/2010 - Decided in favour of assessee.
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2015 (2) TMI 1063
Intellectual Property Services - Taking a view that the assessee should have paid service tax and the amount paid to the Group Companies abroad as a receiver of service as Group Companies did not have office in India, proceedings were initiated culminating confirmation of demand of service tax of ₹ 46,70,785/- with interest and imposition of penalty equal to the tax - Commissioner (Appeals) took the view that waiver of penalty can be granted under Section 80 of the Finance Act, 1994 in view of the fact that the situation was one of revenue neutrality and the assessee had paid the entire amount of tax with interest - Held that:- This is a case where the assessee could have taken Cenvat credit of service tax paid by them and therefore, there was no reason for the assessee to suppress the fact or resort to mis-declaration and therefore, we find ourselves in agreement with the view taken by the Commissioner (Appeals) that extended period could have been invoked in this case. We have taken note of the fact that the respondent-assessee was to pay tax as a receiver of service and not as a provider. Further, we also find that the Commissioner (Appeals) was right in waiving penalty under Section 80 of the Finance Act, 1994 and the provisions of Section 73(3) of the Finance Act, 1994 as it existed prior to 1.4.2011 would be applicable is also correct. Learned C.A. on behalf of the assessee submitted that even though the Commissioner (Appeals) has held that the appellant is liable to pay tax only within the normal period, the assessee would not claim any refund of tax or interest already paid by them. It is his only request to uphold waiver of penalty. We also find that the assessee paid tax with interest and did not propose to claim refund in spite of having order in their favour would show that the respondent-assessee had no such intention to avoid tax or want to avoid by law. Such being the position, we consider that the provisions of Section 80 of the Finance Act has been rightly invoked. In view of above position, we confirm the demand of service tax and interest as not contested and set aside the penalty. - Decided partly in favour of Revenue.
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