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Service Tax - Case Laws
Showing 141 to 151 of 151 Records
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2015 (2) TMI 94 - CESTAT NEW DELHI
Storage or warehousing service - facility of storage of liquid oxygen in the hospital premises - Held that:- The undisputed facts are that the respondent are manufacturers of various gases including medical grade liquid oxygen which during the period of dispute was supplied to KHRC, Noida. There is also no dispute the respondent had also supplied storage tank to KHRC and in terms of their agreement with the hospital were responsible for its maintenance of the tank and its regular inspection as per the provisions of Explosives Act. The oxygen gas sold by the respondent to KHRC was being stored in the tank and as such the same was in the custody or control of the hospital. Therefore, the respondent cannot be treated as storage or warehouse keeper in respect of the oxygen stored in the tank installed in the premises of KHRC. In view of this, we do not find any infirmity in the impugned order. The Revenue’s appeal is dismissed. - Decided against Revenue.
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2015 (2) TMI 93 - CESTAT NEW DELHI
Extension of time to file reply to the show cause notice. - Adjudicating Authority without accepting or rejecting their requests for such extensions, passed the order - Held that:- If an assessee has been causing appearance before the Adjudicating Authority on each and every date of hearing so fixed by him, and is making a request for extension of time, the Adjudicating Authority is under a legal obligation to respond to the said request either by extending the period or by rejecting the request. If the Adjudicating Authority was of the view that the appellants are intentionally delaying the proceedings, he could have rejected the request and made the same known to the assessee at the time of hearing on 24-10-2013. Non-communication of the decision, on the said requests, keeps an assessee in dark, who may entertain a view that such request stands granted by the Adjudicating Authority and he would file the reply within the extended period. - Matter remanded back - Decided in favour of assessee.
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2015 (2) TMI 92 - CESTAT NEW DELHI
Availability of Cenvat credit of service tax paid on outdoor catering - charging of the cost of outdoor catering from the employees - Held that:- As regards the availability of credit, where the employees are not charged, I find that the issue is covered in favour of the assessee. The appellants are not contesting the credit involved in respect of the cases where the cost is being recovered from the employees. Accordingly, I set aside the impugned order and direct the authority below to quantify the exact quantum of credit required to be reversed and also to verify the appellants’ claim of reversal of the same. As regards interest, if the credit stands reversed before utilisation, the interest would not be leviable in terms of Karnataka High Court decision [2011 (4) TMI 969 - KARNATAKA HIGH COURT]. The adjudication authority would also get the said fact verified and would pass fresh orders accordingly. - As regards penalty, I agree with the ld. Advocate that it is not a case of any mala fide intention so as to invoke the penal provision. Accordingly penalty imposed is set aside. - Decided in favour of assessee.
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2015 (2) TMI 50 - CALCUTTA HIGH COURT
Denial of benefit of VCES - Rejection of declaration under second proviso to Section 106(1) of the Finance Act, 2013 - whether the declaration can be denied for a period, which was not covered under the earlier proceeding initiated against the petitioners - Held that:- One or foremost thing to invoke the provisions of the scheme is the declaration by a person as to his tax dues in respect of which no notice or order of determination under the other provisions of the Chapter is issued on or before 1st day of March, 2013. If an issue, which was the subject matter of an earlier notice or on which the determination has already been done in respect of any period, the designated authority was not obliged to issue declaration for any subsequent period on the same issue. - The authorities in the impugned order have clearly indicated that the earlier show cause notice was issued for short-payment of the service tax on account of GTA, Maintenance & Repair Service and BAS and have been decided against the petitioners by the adjudicating authority. The issue involved in the said scheme also relates to the non-payment of the service tax on the component of GTA, Maintenance & Repair Service and BAS. The second proviso envisaged an embargo in making a declaration even for a subsequent period on the same issue. - Court, therefore, does not find that the authorities have, in fact, wrongly applied the said provision. The writ petition is devoid of merit - Decided against assessee.
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2015 (2) TMI 49 - CESTAT NEW DELHI
Waiver of pre deposit - Erection, Installation and Commissioning Service (ECIS) - Invocation of extended period of limitation - Held that:- Demand of service tax has been confirmed against the applicant No.2 under the category of ECIS. On perusal of some of the works orders, we find that main work assigned as the work orders is fabrication and in the case of Neo Structo Constructions Ltd. (2010 (3) TMI 252 - CESTAT, AHMEDABAD), the Tribunal has held that for the activity of fabrication, service tax cannot be levied. Therefore, on fabrication work no service tax will be levied. In these circumstances, we find some merit in the contention of ld. counsel for the applicant No.2. Therefore, we direct that the applicant No.2 to make a pre-deposit of ₹ 15,00,000/- within 8 weeks and report compliance on 24.03.2015. On such compliance, the balance amount of service tax, interest and penalties against both the applicants shall be remained waived off during pendency of the appeals. - Partial stay granted.
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2015 (2) TMI 48 - CESTAT NEW DELHI
Denial of refund claim - Bar of limitation - Misrepresentation of facts - Held that:- It is observed that both Orders-in-Original as referred above have duly been served on the representative of the Company. I am not convinced with the pleadings that orders should not have been handed over to Companys representative who have not been nominated through the Resolution of a Company. As it came out that Shri Gaurav Tiwari, employee of the Company has been interacting with the Central Excise Department by receiving and handing over of letters on behalf of the company Orders-in-Original were received by him after coming to the Range Officer on 26/06/2013. There is a misrepresentation by the appellants that Orders-in-Original were actually received on 28/06/2013 in place of 26/06/2013 in contra to the factual position.
Appeals were dismissed by the Commissioner (appeal) on the ground of limitation as appeals should have been filed on 25/08/2013 whereas those were filed late, i.e., on 27/08/2013. There has been misrepresentation on the fact of date of receipt of Orders-in-Original. Commissioner (appeal) also held that no reason for late filing of the appeals was brought on record by the appellants. No specific request for condonation of delay was made. Even issue of condonation of delay was not looked into by the Commissioner (appeal) as in the main portion of the appeals, only request relating grant of refund to the appellants was made. - Decided against assessee.
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2015 (2) TMI 47 - CESTAT NEW DELHI
Waiver of pre deposit - Management Consultancy Service and Various other services - Denial of CENVAT Credit - Held that:- Without giving any findings on the merits of the case, we find in the impugned order that the major demand pertains to Management Consultancy Service and denial of cenvat credit on various services availed by the appellants. In the impugned order, the ld. Commissioner in the case of Management Consultancy Service has sought a verification to be done by the Assistant Commissioner. For denial of cenvat credit, the appellant has not produced any invoice. In these circumstances, the impugned order is not sustainable in the eyes of law and the matter needs examination at the end of the adjudicating authority. Therefore, we set aside the impugned order and remand the matter back to the adjudicating authority to give an opportunity to the appellant to produce all the relevant documents in support of their defence and to obtain verification report from the Assistant Commissioner with regard to the payment of service tax on Management Consultant Service. The adjudicating authority shall hear the appellant on merits to demand service tax for Business Support Serviceand Manpower Recruitment or Supply Agency Serviceand thereafter shall pass an appropriate order in accordance with law on merits of the case , as contended by the appellant before us - Matter remanded back - Decided in favour of assessee.
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2015 (2) TMI 46 - CESTAT BANGALORE
Waiver of pre deposit - Classification of service - Business Auxiliary service or Banking and Financial service - appellants were engaged in verifying the personal as well as financial details of prospective/potential customers, conducting field investigation and providing a report of its field investigation to the Bank within the time frame as well as in the form prescribed by the Bank - Held that:- activities undertaken by the appellants do not come under any of the categories specified in the services. Learned AR submitted that appellants are engaged in promotion or marketing of the products of M/s. Kotak Mahindra Bank. We are not convinced by this submission. If the Bank requires the appellant to verify and report on the financial position of the prospective/potential customer identified by the Bank and got the report within the time frame/format, it cannot be said that the appellant is marketing/promoting the business of the Bank. Therefore, prima facie, we find that the Service Tax cannot be demanded under BAS.
As regards the services to ICICI Bank on which a portion of the demand has been made, we find that the appellants provide service in relation to collection or recovery of cheques/payments/instalments from the borrowers of the loans; field investigation of the customers pertaining to the personal as well as financial details of prospective customers of Bank. Revenue has taken a view that this amounts to provision of service of recovery agent. According to the definition of collection agent/recovery agent, taxable services means any service provided or to be provided to a banking company or a financial institution including a non-banking/financial company or any other body, corporate or a firm, by any person, in relation to recovery of any sums due to such banking company or financial institutions etc. in any manner. We find that a portion of the services rendered is definitely covered by the definition. Both sides could not quantify the exact amount of tax attributable to this service. But roughly, it was agreed that the amount can be around ₹ 3 lakhs. Having regard to the facts and circumstances discussed above, in our opinion, appellant should deposit an amount of ₹ 3 lakhs (Rupees three lakhs only) towards Service Tax (principal) and ₹ 2 lakhs (Rupees two lakhs only) towards interest within eight weeks - partial stay granted.
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2015 (2) TMI 45 - CESTAT NEW DELHI
CENVAT Credit - Various services - Held that:- So far as Cenvat credit of ₹ 34,933/- in respect of outdoor catering service is concerned, the same is admissible in view of judgment of Hon’ble Bombay High Court in the case of CCE, Nagpur v. Ultratech Cement Ltd. (2010 (10) TMI 13 - BOMBAY HIGH COURT), as admittedly the number of workers in the appellant’s factory is more than 250 and, hence, the providing of canteen facility to the factory workers is mandatory requirement of the provisions of Section 46 of the Factories Act. As regards the service tax credit of ₹ 27,560/- in respect of maintenance of lawns and gardens, I find that the maintenance of lawns and gardens is a condition imposed by the Rajasthan Pollution Control Board, while giving permission to the appellant to operate this factory, as per the provisions of Water (Prevention and Control of Pollution) Act, 1974 and also Air (Prevention and Control of Pollution) Act, 1981. In view of this, I am of the view that service tax credit in respect of the services for maintenance of lawns and gardens is also admissible. As regards, the service tax credit in respect of maintenance of cycle stand, the same is also a necessary requirement and, hence, the same is cenvatable service. As regards maintenance of guest house, I find that the providing and up-keeping of guest house, which is adjacent to the factory premises, is necessary business requirement inasmuch as the factory is located outside the city boundaries. In the same fashion, it stands held by various decisions that maintenance of residential premises is associated with business activities. - Decided in favour of assessee.
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2015 (2) TMI 44 - CESTAT CHENNAI
Denial of CENVAT Credit - Merchant Banking Services - whether or not TR-6 challan evidencing payment of tax after detection of offence case is eligible document for availing Cenvat credit under Rule 9(1)(b) of the Rules, 2004. - Held that:- Respondent issued challan after 14 days of such taxable services and, therefore, it could not be treated as challan under Rule 9(1)(b) of Rules, 2004. There is no dispute that Rule 9(1)(e) permitted to avail credit on the basis of a challan. A challan evidencing payment of Service Tax by the person liable to pay Service Tax under sub-clauses (iii), (iv), (v) and (vii) of clause (d) of sub-rule (1) of Rule 2 of the Service Tax Rules, 1994. - So, it is apparent that after insertion of clause (bb) in Rule 9(1) Notification No. 13/2011 supra, credit can be denied on a challan availed on account of fraud, collusion, etc.
Tribunal in the case of M/s. Metafab (2005 (4) TMI 564 - CESTAT CHENNAI) while dealing with Notification No. 6/97-C.E., wherein Rule 57E of the erstwhile Rules was amended, whereby fraud, collusion, suppression of facts, etc., were incorporated as ground for denying the benefit of Rule 57E to a manufacturer of final product receiving inputs on which initially duty had not been paid or had been short-paid on account of fraud, collusion, suppression of facts, etc. In that case, The Tribunal has observed that the said amendment was not applicable prior to the date of Notification. Similarly, in the present case, the denial of credit on the basis of a challan for the reason of fraud, collusion, suppression of facts, etc., would not be applicable prior to the notification, dated 31-3-2011. Hence, I am unable to accept the contention of the learned Authorised Representative. Hence, in the present case, the respondent availed credit on the basis of the challan as specified under Rule 9(1)(e) which cannot be denied. - Decided against Revenue.
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2015 (2) TMI 43 - CESTAT MUMBAI
Refund claim under Notification No. 41/2007-S.T., dated 16-10-2007 - Port services - Improper documents - Held that:- The Bill of Lading is not a proper document for either payment or availment of service tax. However, the appellants have now produced invoices. The said invoices were not produced either before the original authority or the Commissioner (Appeals). In this regard, the matter is therefore remanded to the original authority to examine the case. As far as the invoice is concerned, I find that there is no dispute about the fact that the goods were exported. Port services are availed and while availing the Port services the service tax was paid. The fact that M/s. MPRS Shipping & Logistics Pvt. Ltd. is not authorized is not relevant as the said service was originally provided by M/s. APL (India) Pvt. Ltd. In view of the said position, the refund claim amounting to ₹ 13,645/- is allowed.
Appellants’ claim is that they have not engaged any transporters for the same but entrusted the whole job to Custom House Agents. The CHA in turn has raised the bills for the transportation charges and as receiver of the said service they have in turn paid the service tax to the Government Account. The objection of the department is that the appellants have not produced lorry receipt and in the invoice the details are not mentioned and it is difficult to co-relate. However, the ld. Counsel submits that they will try to contact CHA to get the lorry receipt and also it will be possible for them to co-relate the bills with the goods exported under Shipping Bill. Since the ld. Counsel undertakes to produce the lorry receipt and make attempt to co-relate the bills with the goods exported, the matter is remanded to the original authority who can examine on the basis of the documents if produced - Decided in favour of assessee.
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