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Service Tax - Case Laws
Showing 21 to 40 of 151 Records
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2015 (2) TMI 1062 - CESTAT CHENNAI
Erection, Commissioning or Installation Service- Construction of transmission tower and related services- exemption under Notification No. 45/2010 dated 20.07.2010 - Held that:- Contract is relating to the services such as earth work excavation, stub setting, concreting tower erection, stringing power conductor etc. Prima facie, in our considered view, the construction of transmission tower and related services could be covered by the exemption Notification No. 45/2010. It is noted that the applicant has already paid an amount of ₹ 7,16,205/-, which is sufficient for hearing of the appeal. We also find force in the submission of the Ld. AR that the exemption Notification would not apply in the case of construction of control room - Matter remanded back - Petition disposed of.
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2015 (2) TMI 1061 - CESTAT NEW DELHI
Commercial or Industrial Construction and Construction of Complex Services - Free Material supplied by service recipients - Notification Nos. 15/2004-ST, dated 10.9.2004 - Notification nos. 18/2005-ST dated 7.6.2005.-
Held that:- It is contended on behalf of the appellant that this issue, including entitlement to benefits under Notification Nos.15/2004-ST, dated 10.9.2004 and 18/2005-ST dated 7.6.2005 is covered by the decision of the Larger Bench of this Tribunal in Bhayana Builders (P) Ltd. [2013 (9) TMI 294 - CESTAT NEW DELHI (LB)]. No other issue arises for consideration. Decided in favour of appellant.
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2015 (2) TMI 1019 - CESTAT MUMBAI
Refund of CENVAT Credit - Held that:- Interest has been granted vide Order-in-Original dated 30.12.2014, wherein the interest of ₹ 4,37,95,262/- has been granted against the claim of the appellant for rebate of Service Tax of ₹ 5,45,77,651/-. It appears from the Order-in-Original dated 30.12.2014 that the interest has been allowed from the date when C.A certificate (certifying utilization of CENVAT Credit) was filed. - appellant made prayer for compliance of order by the Revenue. We note the compliance reported by the Revenue in terms of order of this Tribunal. Thus, the miscellaneous application is disposed of. The assessee/appellant may seek/resort to remedy, against the Order-in-Original dated 30.12.2014, in accordance with law. - Revenue is in appeal before the Hon'ble Supreme Court in Civil Appeal no. 38259 of 2014 against final order dated 21.08.2014 and if the Revenue succeeds, the appellant shall be bound to refund the amount to the Revenue along with interest - application disposed of.
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2015 (2) TMI 1018 - CESTAT NEW DELHI
Waiver of pre deposit - Business auxiliary service or banking and other financial services - Held that:- Prima-facie, the conclusions recorded by the adjudicating authority on both the services alleged, appears unsustainable. Insofar as BAS is concerned, the service provided by the assessee prima-facie falls within the ambit of export of service in view of the Larger Bench decision in CCE, Chandigarh vs. Paul Merchant Ltd. reported in [2012 (12) TMI 424 - CESTAT, DELHI (LB)]. Insofar as BAFS is concerned, prima-facie and in view of the analysis in Association of Leasing and Financial Services Companies vs. Union of India reported in [2010 (10) TMI 4 - SUPREME COURT OF INDIA], particularly in pargraph 20 and 37 (of the report) and the decision of this Tribunal in Commissioner of Service Tax, Delhi vs. M/s.Lufthansa Technik Services India Pvt. Ltd. reported in [2013 (12) TMI 968 - CESTAT NEW DELHI], the transactions do not amount to BAFS and equipment leasing of transactions between the assessee and its customers falls outside the ambit of financial leasing as defined in section 65 (12) read with Section 65 (105) (zm) of the Act. - strong prima-facie case in favour of the petitioner/ appellant. We therefore order waiver of pre-deposit in full and stay all further proceedings for realization of the adjudicated liabilities, pending disposal of the appeal - Stay granted.
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2015 (2) TMI 1017 - CESTAT CHENNAI
Waiver of pre deposit - Commercial or Industrial Construction Service - Held that:- On perusal of Notification No.32/2007 (ST) dated 22.5.2007, which stipulates that no CENVAT credit be availed on the inputs and if the credit is availed, then it should be restricted at 40% subject to service tax at the rate of 4.12% being paid on the total invoice value of the service after availment of said CENVAT credit on the inputs. The learned counsel contested the adjudication order that this option came by Notification No.1/2011-ST (supra). However, we find some force in the submission of the learned counsel on the ground of limitation. Prima facie, we find there is a dispute regarding the eligibility of the benefit of Notification No.32/2007-ST. At this stage, the learned counsel submits that they have already paid a sum of ₹ 38,23,115/- out of which ₹ 33,39,585/- has been appropriated by the adjudicating authority. We find that the amount paid by the applicant is sufficient for the purpose of waiver of predeposit of balance dues. Accordingly, waiver of predeposit of balance dues is granted and recovery thereof is stayed during the pendency of the appeal - Stay granted.
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2015 (2) TMI 1016 - CESTAT CHENNAI
Erection, Commissioning or Installation Service - Notification No.45/2010-ST, dated 20.07.2010 - Held that:- inquiries conducted on the activities of the appellant revealed that they have provided services, which includes earth excavation, stub setting, concreting tower erection, stringing power conductors and earth wire and also construction of revetment, construction of control room retaining walls etc. The activities would be classifiable under Erection, Commissioning or Installation Service. - impugned order is set aside and the matter is remanded back to the Adjudicating authority to decide afresh in the right of the Exemption Notification in accordance with law - Application disposed of.
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2015 (2) TMI 976 - CESTAT AHMEDABAD
CENVAT Credit - Service Tax paid on rent-a-cab services which were used for transporting of officials and guests to and from the factory premises - Cenvat credit is sought to be denied only on the ground that and rent-a-cab services in relation to the business activity and more so if such services are rendered for guest. In my considered view, both the lower authorities have overlooked the judicial pronouncement made by the Hon’ble High Court of Karnataka in the case of Commissioner of Central Excise, Bangalore v. Stanzen Toyotetsu India (P) Ltd. - [2011 (4) TMI 201 - KARNATAKA HIGH COURT]. - those who are visiting the factory premises either be guests or otherwise for the purpose of business activity. In my view, the ratio can be extended and the impugned order to the appellants are unsustainable and liable to set aside the impugned order. - Decided in favour of assessee.
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2015 (2) TMI 974 - CESTAT MUMBAI (LB)
Classification of services - supply of tangible goods for use of service or transport of passengers by air service - Extended period of limitation - Levy of penalty - Held that:- From the preamble of the contract entered into by the appellant with M/s. ONGC, it is seen that ONGC was interested in charter hiring of helicopters for offshore operations being carried out by them and the appellant agreed to provide the required services against the corporation's order in this regard. - t the services rendered by the appellant in charter hire of helicopters to various corporate for offshore operations is classifiable under "supply of tangible goods for use" service. - Demand of service tax confirmed.
The appellant has raised a point that the consideration received should be treated as cum tax and the amount so received shall be apportioned between the taxable value and the service tax. There is merit in this argument. If the appellant has not charged service tax separately and the amounts received included all taxes, the appellant would be definitely eligible for cum tax benefits. However, this benefit will not accrue where the appellant has collected service tax from the customers separately.
Once the demand for service tax is confirmed, interest liability is automatic and consequential. Accordingly, we confirm the liability to pay interest on the delayed payment of service tax by the appellant under the provisions of section 75 of the Finance Act, 1994.
Cenvat Credit - Held that:- There is a denial of Cenvat credit to the extent of ₹ 2,33,09,951/- which was taken by the appellant but not utilized. The credit has been denied on account of non-production of duty paying documents for the credit availed during 16/05/2008 to 31/03/2009. Rule 9(9) of Cenvat Credit Rules also envisages that the provider of output services availing Cenvat credit shall submit half yearly returns in the form specified and the appellant has failed to comply with the requirements. Therefore, the availment of credit without the duty paying documents and without filing the prescribed return is not in accordance with the law and accordingly, the appellants are not eligible for the credit. Therefore, denial of credit is justified. The appellant is also liable to pay interest on the credit taken though not availed, in view of the decision of the Hon'ble Apex Court in the case of Ind-Swift Laboratories Ltd. [2011 (2) TMI 6 - Supreme Court].
Extended period of limitation - Imposition of penalty - Difference of opinion - Majority order - Whether the appellant is liable to penalty under the provisions of Sections 76 & 78 of the Finance Act, 1994 - Held that:- Immediately after the introduction of service tax under the category of ‘supply of tangible goods', the appellant had taken the registration on 2nd July 2008. Thus the facts that they were under the said business was not only informed to the department but they also took registration for the same. Under the circumstances, it cannot be said that there was any suppression of facts. In view of the fact that the appellant has taken the registration as early as on 2 nd July 2008, the appellant has also billed to their customers for the service tax element and on being raising dispute about the levy by few customers, the appellant took the legal opinion on 22nd October 2008 and also the fact that when the Revenue started investigation, they started paying the service tax and the first payment was made on 22nd January 2009, in my view, the ingredients to impose penalty under Section 78 for the period 16 th May 2006 to March 2009 are missing. Under the circumstances, in my view, penalty under Section 78 imposed in the first show cause notice is not sustainable.
I also note that initially the show cause notice proposed penalties both under Sections 76 and 78, but in the impugned order, penalty under Section 76 has not been imposed in view of the fact that the penalty was imposed under Section 78 and the Revenue has not come in appeal against the said order. Therefore, non-imposition of penalty under Section 76 has reached finality as far as the first show cause notice is concerned.
While there can be arguments or reasons for the period upto March 2009 for failure to pay the duty, there does not seem to be any valid ground for non-payment of duty after April 2009. In view of the said position, in my considered view, penalty for the period April 2009 to March 2011 cannot be waived under Section 80 of the Finance Act.
Imposition of penalties on the appellant under Section 76 & 77 of the Finance Act, 1994 for the default in payment of service tax and for non-compliance of statutory provisions relating to the service tax is upheld. However, we set aside the penalties imposed under Section 78 of the Finance Act, 1994. The penalty of ₹ 2,000/- imposed under Rule 15(3) of the Cenvat Credit Rules, 2004 is also upheld. - Decided partly in favour of assessee.
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2015 (2) TMI 973 - CESTAT BANGALORE
Waiver of pre deposit - Classification of service - Telecommunication service or Business Support Service - appellant is engaged in the provision of audio-conferencing services and web-conferencing services to its customers located both in India and abroad - Held that:- Appellant was engaged in gathering the messages from senders and transmitted through cellular agencies. Therefore the issue before the Tribunal was not the services rendered by a Telecommunication service provider but a sms service provider who used the service of Telecommunication service to send the messages. - just because the foreign service provider has not been licensed by Indian Telegraph Authority and therefore he is not providing Telecommunication Service at all. The correct way of interpretation is to say that he is providing Telecommunication service but the Indian definition of Telecommunication service does not include services provided by services providers who are not licensed by Indian Telegraph Authority. We are unable to accept the theory that the service itself comes under a different category in such a situation. When the definition of Telecommunication service under Section 65(109a) clearly covers the activities undertaken by the appellants and clearly covered by the Telecommunication services, to take a stand that it has to be classified under Business Support Service which does not cover these activities is not correct. In any case a more specific heading which covers the issue is always to be preferred to the one which is general in nature. That being the position, the argument that the service is classifiable under Business Support Service is not acceptable. - appellant has made out a case for complete waiver. Accordingly the requirement of pre-deposit is waived and stay against recovery is granted during the pendency of appeal.- Stay granted.
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2015 (2) TMI 972 - CESTAT MUMBAI
Valuation - inclusion of value of material - authorised service station for Maruti cars - Board's Circular no. 96/7/2007-ST dated 23/08/2007 - Held that:- Appellant are charging handling charges whenever automobile parts are sold either independently or part of the service and repair of automobiles. In both the situations, invoices are issued for the sale of the goods as well as for collection of service charges for the services rendered. Handling charges were incurred in connection with the procurement of the goods and are included in the value of the goods sold and sales tax/VAT liability is discharged on the value inclusive of the handling charges. Therefore, we do not understand how service tax levy would apply especially when the goods are subject to sales tax/VAT on a value inclusive of handling charges. It is not in dispute that the handling charges are incurred in connection with the procurement of the parts. If that be so they will obviously form part of the value of the goods when they are subsequently sold. - Section 67 of the Finance Act, 1994 mandate levy of Service Tax on a value or consideration received for rendering the services. Therefore, any consideration received for supply of goods is not covered within the scope of section 67. The decisions of the Tribunal in the case of Ketan Motors Ltd. [2014 (3) TMI 226 - CESTAT MUMBAI] and Dynamic Motors cited [2011 (11) TMI 308 - CESTAT, NEW DELHI] also support this view. - Accordingly, the impugned order is clearly unsustainable in law and, therefore, the same is set aside - Decided in favour of assessee.
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2015 (2) TMI 971 - CESTAT NEW DELHI
Denial of exemption from service tax - Whether sub-contractors engaged for building residential complexes for Delhi Police could be considered for receiving services on behalf Govt. of India and no service tax liability could be fastened on them - Held that:- Commissioner (Appeals) has distinguished that Govt. of India enterprise cannot be equated with any Govt. Department which were on behalf of Government of India or President of India. He also come to conclusion that appellant had entered into contract of service with M/s HPL and referred the construction service with M/s HPL and not to Delhi Police rightly and being a sub-contractor they were liable to pay the service tax. - it is seen that major beneficiary of contractor or residential complex is the Delhi Police (Govt. of India) and M/s HPL is only the contractor executing agency who have provided the service to the Delhi Police through sub- contractor. They have further got the work done from the appellants who were connected as a sub-contractor. I find that intention of the Government is not to levy service tax on the service received by the Government of India through contractor or subcontractor. I have also examined the exemption. If sub-contractor is directed to pay the service tax which have ultimately to be utilizes by the Delhi Police (Govt. of India) only on technicality that a sub-contractor is involved in the construction of building, will ipso facto take away the exemption granted to the Government of India. Further use of housing complex for non-commercial use and will not come under the service leviable to service tax. In this regard definition of the service of commercial and industrial construction service became taxable as per the Section 65 (25b) in 2004. However, the definition and scope of service was changed by Finance Act, 2005 and revised definition is reproduced for appreciation.
Building has been got constructed by the Government of India for their own use as residential complexes for Delhi Police, it does not result in construction for commercial purposes further construction by Government for non-commercial purpose was not taxable, however construction by the Government for commercial activities such as civil body construction for shops or commercial complexes laying in the nature of commercial activity were taxable. - merely because the construction has been get done from the contractor/sub-contractor, it will not change the nature or the activity from non-commercial to commercial. Once it comes out that Government has undertaken a project which is non-commercial in nature and not taxable, service received on this account by the Government would not come under the taxability. - even subcontractor cannot be directed to pay service tax when the taxability of the construction is non commercial in nature being not taxable. - Decided in favour of assessee.
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2015 (2) TMI 970 - CESTAT MUMBAI
Helicopter Chartering service - Supply of tangible Goods for Use services or Air Transport of Passengers services - Held that:- We have carefully considered the rival submissions. In the present case the appellant has been discharging service tax liability under the category of 'Air Transport of Passenger' since 2010. Whether operating helicopter on charter basis for transport of passengers would merit classification under 'Air Transport of Passenger Service' or under the category of 'Supply of Tangible Goods for Use' is a complicated and contentious issue. There can be arguments for classification under either of the category with equal force. Therefore, considering the fact that the appellant has paid a sum of about ₹ 37 crores as against the demand of about ₹ 67 crores, we consider the same to be sufficient for the purpose of hearing of the appeal. - Stay granted.
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2015 (2) TMI 933 - CESTAT MUMBAI
Sale of space of advertisement services - Advertisement in publication KALDARSHIKA - Covered in definition of Book or a business directory, yellow page etc. - Held that:- As against the factual finding as recorded by the first appellate authority, we find hat the revenue has not brought any material which is contrary to the facts as recorded by the first appellate authority. Be that as it may, we find that definition of ‘Sale of space for advertisement' as relied by the Departmental Representative falling under Section 65(105)(zzzm) would not cover the product published by the appellant, as the said publication cannot be considered a calendar, but an Almanac, which gives reader a host of information in respect of religions, cultural and historical events, as also the panchang.
We agree with the first appellate authority that the appellant's product KALDARSHIKA cannot be termed as a business directory, yellow pages or trade catalogue; hence it is to be held as ‘book' to be covered under the explanation (2) to the definition of the ‘Sale of Space for advertisement'. - Decided against the revenue.
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2015 (2) TMI 932 - CESTAT NEW DELHI
Penalty u/s 76 & 78 - Suppression of facts - Whether there was suppression in declaring the receipt of taxable service tax and consequent short payment of service tax and consequently imposition of penalty under section 76 and 78 of Finance Act was justified or not - Held that:- While going through the records, it is evident that suppression of taxable receipt was detected by the revenue and the appellant accepted short levy of service tax and deposited the service tax, Their contention that there should not be imposition of penalty as service tax has been deposited by them is not tenable. It was only on investigation Toy the revenue that suppression could be detected. As such no benefit of exemption from penalty could be made available to the appellant. - Decided against assessee.
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2015 (2) TMI 931 - CESTAT MUMBAI
Waiver of pre deposit - Commercial Coaching and Training Institute service - Imposition of interest and penalty - Held that:- The fact is that the applicant is running the courses recognised by the University have not been considered by the Revenue at the time of issuance of show-cause notice. In fact the applicant is running courses recognised by the university and issuing degree for providing those courses. Therefore, for the period prior to May 11 prima facie the applicant is not covered under the definition of "Commercial Coaching and Training Centre". Therefore, the argument advanced by the AR that running of degree courses by the applicant being recognised by the University is not subject matter is not correct as we have to see the whole activity carried out by the applicant.
Therefore, the applicant is not providing service under the category of "Commercial Coaching and Training Centre". Further, we find that post 2010, the applicant is collecting service tax on the fees recovered by them from the students to whom they are providing professional courses which are not recognised by the University. Although they are maintain a separate account as "Deposits towards service tax." But as they have collected the amount on account of service tax the same is required to be paid to the department at this stage. - Partial stay granted.
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2015 (2) TMI 930 - CESTAT MUMBAI
Goods Transport Agency - Authorised Service Station - Revenue have disallowed the input service credit on GTA service, holding that the input service is in respect of sales of motor cycles, which is a trading activity and not related to the servicing activity of the appellant - Held that:- The facts are squarely covered by earlier ruling of this Tribunal in [2014 (5) TMI 614 - CESTAT MUMBAI] & in the case of CCE Vs. Shariff Motors (2009 (3) TMI 155 - CESTAT, BANGLORE). I have taken up the matter for final disposal with consent, and accordingly, following the ruling of this Tribunal I allow the appeal in favour of the appellant and Revenue is directed to refund the amount of tax within six weeks from receipt of copy of this order, along with interest as per Rules. - Decided in favour of assessee.
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2015 (2) TMI 929 - CESTAT CHENNAI
Waiver of pre deposit - construction of residential complex service - Held that:- Applicant was engaged in construction of residential complex for the Tamil Nadu Police Housing Corporation Ltd. under the Govt of Tamil Nadu - following the Tribunal's earlier decision (2013 (8) TMI 262 - CESTAT CHENNAI), we waive predeposit of tax along with interest and penalty till disposal of the appeal - Stay granted.
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2015 (2) TMI 888 - CESTAT MUMBAI
Sale of all assets and liabilities on going concern basis - Lump sum consideration as well as royalty received - Scientific or technical consultancy service - Held that:- We find that for services to get covered under the said service category, there has to be a scientific or technical institution or organisation and they should have rendered the services in a one or more disciplines of science or technology as an institution; or scientists or technocrats, it is on record that the appellants herein are manufactures of pharmaceutical goods and had their own set up, which they have sold to Universal Medicaments Pvt. Ltd. On this factual matrix, we find that the judgement of the Tribunal in the case of Modi-Mundipharma Pvt. Ltd. [2009 (4) TMI 113 - CESTAT, NEW DELHI] squarely covers the issue in favour of the appellants.
The same views was taken in the case of Just Textiles Ltd. [2014 (10) TMI 280 - CESTAT MUMBAI]. In view of the foregoing and the judicial pronouncements and factually appellants being manufacturers; not rendering any advice or consultancy, we find that impugned orders are liable to set aside and we do so. Decided in favour of appellant.
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2015 (2) TMI 887 - CESTAT MUMBAI
Manpower Recruitment or Supply Agency Services - Assessee contends that activity does not fall under the said category - Held that:- Issue came up before this, Tribunal in the case of Bhogavati Janseva Trust Vs. Commissioner of C.Ex., Kolhapur reported in [2014 (9) TMI 482 - CESTAT MUMBAI] held that the activity of Harvesting and transportation of sugarcane from the farmer's field to the sugar factory does not fall under the category of Manpower Recruitment or Supply Agency Services. In the case of Amrit Sanjivni Sugarcane Transport Co. Pvt. Ltd. vide [2013 (8) TMI 58 - CESTAT MUMBAI] that Tribunal has taken the same view. In these circumstances, the issue is no more res integra, therefore, we hold that in all these matters the appellants are not liable to pay service tax under the category of Manpower Recruitment or Supply Agency Services. - Impugned order is set aside - Decided in favour of assessee.
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2015 (2) TMI 886 - CESTAT MUMBAI
Demand of tax on notional interest - whether the appellant is required to pay service tax on notional interest accrued on security deposits for renting of immovable property is liable to service tax or not - Held that:- issue has been extensively considered by this Tribunal in the case of Magarpatta Township Developers & Construction Co. (supra), wherein this Tribunal held that notional interest on security deposit cannot be added to rent agreed upon between the parties for the purpose of levy of service tax for renting of immovable property. Therefore, we hold that the appellant is not required to pay service tax on notional interest on security deposit under the category of renting of immovable property service. Impugned order is set aside - Decided in favour of assessee.
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