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Service Tax - Case Laws
Showing 41 to 60 of 151 Records
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2015 (2) TMI 885 - CESTAT MUMBAI
Rectification of mistake (ROM) apparent on order - Review of application - Rent a cab service/ Tour operator service - Bus reservation charges - Held that:- In para 6 of our order, we have discussed the issue at length and we have observed that the bus reservation agreement is for booking of bus for the tours undertaken to Nasik, Ellora, Ghrisneshwar, Siddharth Garden, and so on and it is in relation to the conduct of the tours and therefore, rightly forms part of the tour operator's service as defined in law. We have also noted that for the previous period in appellant's own case, the matter had been examined by this Tribunal and it was held that the appellant would be liable to discharge service tax liability under the category of 'tour operator's charges' w.e.f. 10/09/2004. Therefore, we do not find any merit in the rectification application with regard to the confirmation of service tax demand on the bus reservation charges collected by the appellant in respect of the tours undertaken for the period prior to 01/06/2007.
It is a settled position that in any ROM application, the mistake should be apparent on the face of the record. If the issue involves detailed reasoning or re-appreciation of evidence it would be beyond the scope of an ROM application and would amount to review of the order which is not permissible as held by the apex Court in the case of RDC Concrete (India) Pvt. Ltd. [2011 (8) TMI 25 - SUPREME COURT OF INDIA] and ACSU Ltd. [2002 (12) TMI 87 - SUPREME COURT OF INDIA]. In the present application, what the appellant is seeking is review of the order by re-appreciation of the arguments which is not permissible. - Decided against the assessee.
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2015 (2) TMI 843 - CESTAT MUMBAI
Practising Chartered Accountant and Management Consultancy Services - Exempted and Taxable services - Duty paid with out claiming benefit of Notifications No. 25/2006 & Notification No. 4/2006 - Cenvat credit of invoices raised in name of other office address -
Held that:- The first issue is whether the credit of input Service Tax is available on basis of invoices which were addressed to the Worli office but the credit thereof was availed in the Mafatlal House office. We find that in similar cases, credit has been allowed. In the case of DNH Spinners [2009 (7) TMI 130 - CESTAT, AHMEDABAD] , the Tribunal held that credit cannot be denied on technical grounds that the documents were not in the name of assessee's factor at Silvassa but the same were issued in the name of the Head office of the assessee situated at Mumbai. In the case of Modern Petrofils [2010 (7) TMI 319 - CESTAT, AHMEDABAD] , it was held that credit may not be denied because the invoices were in the name of the Head office instead of factory, as long as there is no allegation that the inputs services are not relatable to the factory and were consumed in the factory. Following these decisions, we hold that credit cannot be denied for the procedural infraction that the addressee in the invoices was another office of the appellant.
It is not the case of Revenue that the input services have not been used to provide the output services. It is also not the case of Revenue that the input services were consumed both in the Mafatlal House office and in the Worli office. The appellant's claim is that the invoices are normally addressed to the Worli office which is also their Financial Accounting office. Therefore we see no reason to disallow the credit. It was submitted by the learned Counsel during the hearing that he would not mind if this part of the matter is remitted to the Commissioner for factual verification. Accordingly we allow the CENVAT credit on principle, but remand the case to the Commissioner for verifying that the inputs services in respect of these invoices were actually used in the Mafatlal House office and not in the Worli office.
The second matter to determined in this case is whether the appellant had provided taxable and exempted services so as to fall under the restrictive clause of Rule 6(3)(c) which allows credit only to the extent of 20% of the Service Tax payable on output services. Conditionality in Notification No. 4/2004 has not been discussed at all by the Commissioner in the impugned order. The Commissioner simply states that the appellant devised his own way of defeating the provisions of Rule 6 (3)(c) by paying Service Tax on their own volition in respect of exempted services. We cannot appreciate this finding of the Commissioner in view of the legal frame work in which the Notification NO. 25/2006 and 04/2004 operate. We reject this finding. Rather we do agree with the argument of the learned C.A. about the lack of provisions in Service Tax law which are akin to Section 5(A)(1A) of the Central Excise Act. It was held in the case of Crown Products Pvt. Ltd. [2012 (8) TMI 373 - CESTAT, MUMBAI] that there is no law barring an assessee from paying tax on exempted services and claiming refund thereafter.
Thus it is clear that under Service Tax law, the assessee is not prohibited from paying tax on goods exempted under a notification. Having held so, we find that the appellant had not provided exempted and taxable services in terms of Rule 6(2) of the CENVAT Credit Rules and therefore the restriction of availment of CENVAT Credit up to 20% of the value of taxable services provided would not apply. Decided in favour of appellant.
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2015 (2) TMI 842 - CESTAT CHENNAI
Business Auxiliary Service - grinding of wheat into wheat products such as Maida, Atta, Suji and Bran for various clients - Held that:- t the process would amount to manufacture and no service tax is leviable - Following decision of Jayakrishna Flour Mills (P) Ltd. Vs CCE Madurai [2014 (12) TMI 547 - CESTAT CHENNAI] - Decided in favour of assessee.
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2015 (2) TMI 841 - CESTAT CHENNAI
Waiver of pre deposit - Transportation of Goods by Road Service - Held that:- Applicant had not produced the Reconciliation Statement before the Adjudicating Authority. We find some force in the submission of the learned Advocate and the difference will be ascertained after verification of accounts in depth which was not done. It shall be looked into at the time of appeal hearing. In view of that, the applicant failed to make out a strong prima facie case for waiver of pre-deposit of the entire amount of tax along with interest and penalty. The learned Advocate submits that the matter should be remanded as the Adjudicating authority had not considered the Reconciliation Statement of Accounts, which will be evident from the CD. Therefore, we direct the applicant to pre-deposit a sum of ₹ 50,00,000 within a period of eight weeks. Upon deposit of the said amount, pre-deposit of balance amount of tax along with interest and penalty would be waived. Both sides are at liberty to mention at the time of stay compliance for disposal of the appeal - Partial stay granted.
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2015 (2) TMI 840 - CESTAT CHENNAI
Commission paid to the foreign agent for procuring the orders - exemption under Notification No.30/04-ST dt. 9.7.2004 - Held that:- Court has perused the case law relied upon by learned advocate, wherein the assessee paid 50% of tax. However, considering the observation of the Hon'ble High Court [2013 (12) TMI 499 - MADRAS HIGH COURT] in para-6 of the said decision, we direct the applicant to predeposit a sum of ₹ 5,00,000/- (Rupees five lakhs only) as offered by learned advocate within a period of 8 weeks. Upon deposit of the said amount, predeposit of balance amount of tax along with interest and penalty would be waived and recovery thereof is stayed till disposal of the appeal - Partial stay granted.
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2015 (2) TMI 839 - CESTAT MUMBAI
Penalty u/s 76, 77 & 78 - Manpower Recruitment or Supply Agency Service - Held that:- In this case the appellant is engaged in the activity of jobwork on their factory on behalf of their principals. It is alleged that the appellant is providing Manpower Recruitment or Supply Agency Service during the course of Audit. Instead of litigate the matter; the appellant collected the service tax from their principals as whatever service tax paid by the principals is entitled to take CENVAT Credit. In these circumstances, it cannot be said that the appellant was having any intention to evade the payment of service tax. Therefore, when objection has been raised during the course of audit, service tax has been paid by the appellant and later-on interest was also paid to avoid litigation. In these circumstances, the show-cause notice was not required to be issued to the appellant as per Section 73(3) of the Finance Act, 1994. In these circumstances, the appellant is entitled for the benefit of Section 80 of the Finance Act, 1994. Accordingly, I set aside the order of imposition of penalty on the appellant. - Appeal disposed of.
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2015 (2) TMI 801 - CESTAT MUMBAI
Commercial or Industrial Construction Service - Works Contract Service - Change of contract from old contract to new contract is only an amendment with the same object i.e. construction of City Centre Mall - Works Contract (Compositon Scheme for payment of Service Tax) Rule, 2007.
Held that:- It is apparent that two contracts are different in factual details. The clauses relating to Retention money and Mobilization advances are very significant clauses in such type of Agreements. In the present case, these two clauses are quite different in the earlier Contract and the later Contract. Further evidence has been provided by the appellant in the form of Ledger abstract showing payment made to the appellant by M/s City Centre Mall Pvt. Ltd., Nashik. The Ledger abstract clearly indicated that the payments are differentiated as under the old contract and the new contract.
Therefore, we arrive at the conclusion that the old contract was terminated w.e.f. 31.5.2007 and a fresh contract was executed w.e.f. 5.6.2007. Having stated that the fresh contract from 5.6.2007 is to be considered as a new contract, there cannot be any objection to classify the service rendered in this contract as a Works Contract Service, which was introduced w.e.f. 1.6.2007.
The provider who opts to pay tax under the Rule shall exercise such option prior to payment of Service Tax. We find force in the appellant's contention that the fact that they had started paying tax under the Works Contract Composition Scheme is quite evident from the rate of tax reflected in the ST-3 returns. In any case, they had exercised option on 26.9.2007, the substantial benefit cannot be denied for procedural deficiency of delay in opting for Works Contract Service by a specific declaration under Rule 3. More so, when no format has been prescribed for making/exercising an option nor has it been specified as to whom the option must be addressed. Reliance is placed on the case of Bridge and Roof Company [2012 (6) TMI 491 - CESTAT, NEW DELHI] - Decided in favour of appellant.
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2015 (2) TMI 800 - CESTAT NEW DELHI
Benefit of small scale exemption under Notification No. 6/2005-ST - Services under brand name of others - Services provided under Business Auxiliary Service - Penalty imposed u/s 76, 77 & 78 - - option to pay 25% of the mandatory equal penalty - Held that:- It is a fact that the appellant had rendered Business Auxiliary Service to IOC and therefore it is not correct to say that they had rendered service in the brand name of IOC. Accordingly their contention that they are eligible for SSI benefit is sustainable.
Levy of penalty - simultaneous penalties under Section 76 and 78 - Held that:- The High Court has held that no simultaneous penalties under Section 76 and 78 may not be justified even if those penalties were legally not mutually exclusive, in the cases of CCE Vs. First Flight Curios Ltd. [2011 (1) TMI 52 - High Court of Punjab and Haryana], in case of CCE, Chandigarh-I Vs. M/s. Cooltech Corporation [2010 (12) TMI 78 - PUNJAB AND HARYANA HIGH COURT] and also in case of CCE, Vs, Pannu Property Dealers, Ludhiana [2010 (7) TMI 255 - PUNJAB AND HARYANA HIGH COURT] - There is also force in the appellants contention that neither in the Order-in-Original nor in the Order-in-Appeal option had been given to them to pay 25% of the mandatory equal penalty if the adjudicated liability of service tax and interest along with 25% of the mandatory equal penalty are deposit within 30 days and that such option should be given to them now. - Matter remanded back - Decided conditionally in favour of assessee.
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2015 (2) TMI 799 - CESTAT CHENNAI
Waiver of pre deposit - payment of service tax by the other person on behalf of assessee (the service provider) - Commercial Training or Coaching Services - Held that:- Applicant contended before the adjudicating authority that the entire service tax liability of their Coimbatore Branch had been discharged by M/s. Maya. Adjudicating authority observed that service tax liability has to be discharged by the applicant, service provider and therefore he has not accepted the payment of tax by M/s. Maya. In this context, Ld.AR drew the attention of the Bench to relevant portion of the order of Commissioner (Appeals). But, we are not impressed with the submission of Ld. AR on the ground that the adjudicating authority had not disputed the payment of tax by M/s. Maya in the adjudication order. We find that the case law relied upon by Ld. AR, where no tax was paid by other persons. Prima facie , we find that the tax was paid by M/s. Maya which should have been paid by the applicant, according to Revenue. Hence the applicant has prima facie a strong case for waiver of entire amount of tax along with interest and penalty. Accordingly, we waive the predeposit of the entire amount of tax and penalty till disposal of appeal. - Stay granted.
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2015 (2) TMI 798 - CESTAT BANGALORE
Condonation of delay - Delay of 1 day in filing the appeal - Held that:- Commissioner (Appeals) should have condoned the delay under the circumstances and consider the stay application and appeal on merits in accordance with law. Accordingly, we condone the delay of one day in filing the appeal before the Commissioner and remand the matter to the Commissioner (Appeals) for fresh decision after considering the stay application and appeal filed by the appellant. Needless to say that the appellant shall be given reasonable opportunity to present their case before an order is passed. - Delay condoned.
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2015 (2) TMI 797 - CESTAT MUMBAI
Modification of stay order - Waiver of pre deposit - Held that:- Considering the final order passed by Principal Bench at Delhi in the case of Greater Noida Industrial Development Authority [2014 (9) TMI 306 - CESTAT NEW DELHI] and also the order of the Hon'ble High Court of Bombay in the case of City & Industrial Development Corporation of Maharashtra Ltd. [2014 (11) TMI 127 - BOMBAY HIGH COURT], we modify our order [2014 (9) TMI 697 - CESTAT MUMBAI] by waiving the requirement of pre-deposit of ₹ 185 crore and direct the registry to list the appeal for final hearing without insisting on any pre-deposit. Revenue is restrained from recovery of dues adjudged against the appellant during the pendency of the appeal. - Modification allowed.
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2015 (2) TMI 755 - CESTAT MUMBAI
Payment of service tax by utilising Cenvat credit- Commission paid to the foreign commission agent- Held that:- I find that to determine eligibility to pay duty from the CENVAT Credit account, the Rules namely Rule 2(r), (2)(p) and 2(q) of Cenvat Credit Rules, 2004 need to be considered read with Rule 2(1)(d)(iv) of the Service Tax Rules, 1994. Rule 2(1)(d)(iv) states that in relation to any taxable service provided from any country other than India and received by any person in India under Section 66A of the Act, the recipient of the service is liable to pay service tax. Rule 2 (p) states that the output service is a taxable service provided by the provider of taxable service. The provider of taxable service is defined under Rule 2(r) to include a person who is liable to pay service tax. The person liable for paying service tax has the meaning assigned to defined in Rule 2(1)(d) of the Service Tax Rules.
In the present case the person liable to pay tax is the recipient. A harmonious reading of the above provisions of law indicate that the recipient of the service in this case is a provider and therefore the plea of the Revenue that the appellant is not a output service provider is not correct. The same views were taken in the case of Tata AIG Life Insureance Co. Ltd. [2014 (4) TMI 637 - CESTAT MUMBAI] and Kansara Modler Ltd. [2014 (1) TMI 1095 - CESTAT NEW DELHI]. Decided in favour of appellant.
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2015 (2) TMI 754 - CESTAT CHENNAI
Waiver of predeposit- Manpower Recruitment or Supply Agency Service- Reimbursement of salary- Held that:- Prima facie, we find that the present case is covered by the decision of the Tribunal in the case of Neelav Jaiswal & Brothers [2013 (8) TMI 147 - CESTAT NEW DELHI], which is in favour of the Revenue. We also note that the Tribunal considered the decision of the Hon'ble Delhi High Court in the case Interncontinental Consultants and Technocrats Pvt. Ltd. [2012 (12) TMI 150 - DELHI HIGH COURT]. In view of that the applicant failed to make out a strong prima facie case for waiver of predeposit of the entire dues. Accordingly, we direct the applicant to predeposit an amount of ₹ 35,00,000/- (Rupees thirty five lakhs only) within a period of eight weeks and report compliance on 13.2.2015. Decided partly in favour of assessee.
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2015 (2) TMI 753 - CESTAT AHMEDABAD
Denial of refund claim - Bar of limitation - Non receipt of OIO - Held that:- no acknowledgment from the appellant has been produced by the department to indicate that OIO dated 12.01.2011 was received. Under similar facts, this bench is taking a view that an appealable order cannot be considered to have been delivered. In view of the case laws relied upon by the appellant the order passed by the first appellate authority is required to be set-aside. Accordingly, the OIA dated 20.12.2012 passed by Commissioner (Appeals) is set-aside and the matter is remanded back to him for passing the order on merits after giving an opportunity of personal hearing to the appellant to argue his case. - Decided in favour of assessee.
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2015 (2) TMI 752 - CESTAT MUMBAI
Denial of refund claim - receipt of donation from caterers - Bar of limitation - Held that:- As regards the refund of ₹ 47,029/- already sanctioned under Section 11B it is quite clear that interest has to be paid under Section 11BB of the Central Excise Act as made applicable to Service Tax - In the case of refund which was rejected, I note that the appellant requested for an assessment order in respect of the tax which they were persuaded to pay. This request was made within three months of the date of payment of Service Tax. Had they received the assessment order/adjudication order under the Finance Act confirming the tax payment, they would have applied for refund under Section 11B as made applicable to Finance Act, 1994. Notwithstanding this aspect, it has been held in various judgements pursuant to the Hon'ble Apex Court judgement in the case of M/s Mafatlal Industries [1996 (12) TMI 50 - SUPREME COURT OF INDIA] and as held in the judgement of KVR Construction (2012 (7) TMI 22 - KARNATAKA HIGH COURT), that the time bar under 11B will apply only if the demand has been made or paid as duty under the law. In the present case no such demand was made under law by a demand or order. Rather the tax which was collected was not payable in law and appellants were persuaded to pay the amount. Therefore, the appellant is entitled to refund along with appropriate interest payable under law. - Decided in favour of assessee.
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2015 (2) TMI 710 - CESTAT BANGALORE
Service tax under GTA services - Notification No. 34/2004-S.T. dated 03.12.2004 - Goods sent by through Auto, Car, Taxi, etc. - Held that:- On going through the said orders of the authorities below, I find that the Assistant Commissioner has examined the entire facts and details and has also held that service tax demanded in the show-cause notice was deposited by the assessee, after availing the abatement of 75% in terms of Notification No. 34/2004-S.T dated 3.12.2004. As against the said order, the observations made by the appellate authority are cryptic and not arising out of the impugned order of the Assistant Commissioner. The Commissioner (Appeals) has not referred to any of the issues on merits and has simpliciter observed that the order of the Assistant Commissioner is not correct.
As regards the penalty, I find merits in the findings of the original adjudicating authority that inasmuch as the most of the cases, the freight charges involved is less than ₹ 750/- (Rupees Seven hundred fifty only) and the goods were being transported through taxi, car, auto etc. and in most of the cases, transporters were themselves paying service tax, non-payment of service tax to a small amount cannot be held attributable to any malafide on the part of the appellant so as to invoke the penalty provisions.In view of above, I find no merits in the order of the Commissioner (Appeals). Decided in favour of appellant.
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2015 (2) TMI 709 - CESTAT MUMBAI
Utilisation of Cenvat credit for payment under Sec.73A(2) - Amount collected in the name of service tax on non taxable activity - Sponsorship of sporting events - Held that:- It is in this factual and legal scenario, the question whether the appellant could have utilised cenvat credit for payment of the amount envisaged in Section 73A (2) has to be considered. The said section envisaged that “where any person who has collected any amount, which is not required to be collected from any other person, in any manner as representing service tax, such person shall forthwith pay the amount so collected to the credit of the Central Government.” Further Rule 3 of the Cenvat Credit rules, 2004 did not provide for utilisation of cenvat credit for payment of the amount specified in section 73A (2) of the Finance Act, 1994 or section 11D of the Central Excise Act, 1944.
Since in the present case, the appellant was not a provider of any output service, he could not have taken any cenvat credit on the input or input services. Further he could not have utilised the credit for payment of the amount envisaged under section 73A(2). Thus, the discharge of the liability under section 73A(2) utilising cenvat credit was improper and illegal. Consequently, the demand of the department for payment of the liability under section 73A(2) of the Finance Act, 1994, in cash, is correct in law and cannot be faulted. As a consequence, the appellant is also liable to pay interest for the default period during which the amount was not made good in cash.
The last issue for consideration is whether the appellant is liable to any penalty. Since the issue related to interpretation of law and there was no intention to evade or avoid payment of tax, there is no warrant to impose any penalty and accordingly, we set aside the penalty imposed on the appellant.Since the appellant has subsequently paid the amount in cash, the appellant would be entitled to restoration of credit which was debited from the cenvat account subject to the condition that the appellant does not claim any refund of the amount paid in cash. Decided against the appellant.
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2015 (2) TMI 708 - CESTAT BANGALORE
Waiver of pre-deposit - Works Contract Service - demand of service tax from principal contractor whereas work was executed by the sub-contractor under the 'back to back basis' agreements - Held that:- Reliance for this contention is placed on the decision of the Supreme Court in Larsen & Tourbo Ltd. & Ors [2008 (8) TMI 21 - SUPREME COURT]. The Supreme Court clarified that in a construction works contract, the property used in the construction of a building/project passes from the builder to the owner of the land on which the building is constructed when the goods or materials used are incorporated in the building and that is so, even if there is no privity of contract between the contractee and the sub-contractor, since the deemed transfer of property in goods is based on the principle of accretion of property in goods. On the basis of the law declared by Hon'ble Supreme Court supra, it prima facie appears that no 'works contract service' was provided by the appellant to the Government of Andhra Pradesh since it was the sub-contractors who transferred the property in goods to the State Government by the process accretion of such goods into the property of State Government, during execution of works contract by the sub-contractors. - stay granted.
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2015 (2) TMI 707 - CESTAT NEW DELHI
Delay in filing of appeal - Sufficient reason for causing the delay - Held that:- Considering the submissions made by both the sides, we find that the appeal has been filed within the condonable period of delay and the reasons causing the delay have also been explained to the satisfaction of this Bench. Decided in favour of appellant.
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2015 (2) TMI 706 - BOMBAY HIGH COURT
Service tax on builders - Construction of residential complex services - Commercial and industrial construction services - setting aside assessment order - Held that:- Learned Advocate Shri Bhoot as also learned Advocate Shri Mirza have their respective contention on paragraph no. 3 of Circular No. 108/02/2009-ST dated 29/01/2009. However, impugned order does not consider the fact whether the petitioner had during relevant period executed any sale deed or not. If concept of 'self service' is attracted in case of petitioner, the petitioner may not be liable to pay any tax under the head service tax. Similarly other factors taken note of in paragraph 3 of circular need to be looked into by the assessing authority.
Advocate Shri Mirza submitted that this circular issued in 2009 cannot be corelated with facts looked into the impugned order. We find that the circular only recognizes legal position and does not lay down any new law. It explains and interprets an existing provision. The contention that it cannot operate retrospectively is erroneous. It is interpretation of legal position and it can always be applied to the facts and events at hand.
The impugned order does not show any consideration of any sale deed executed by petitioner in favour of its customers or clients. There is no application of mind as required in paragraph no. 3 of CBEC circular (supra). As such, it can be seen that said order of assessment is incomplete. Current demand and assessment order set aside. - Matter remanded back to deal with assessment proceedings before competent officer. - Writ petition is partly allowed in favour of assessee.
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