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Service Tax - Case Laws
Showing 81 to 100 of 151 Records
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2015 (2) TMI 479 - CESTAT NEW DELHI
CENVAT Credit - Whether the appellant is entitled to credit of service tax paid on outdoor catering service.I find that the issue is covered by the Larger Bench decision of the Tribunal in the case of Commissioner of Central Excise vs. GTC Industries Ltd. [2008 (9) TMI 56 - CESTAT MUMBAI] - Held that:- Commissioner (Appeals) has rejected the appeal by following the some decisions of the Tribunal which are not exactly on the point. Inasmuch as the issue is covered, I deem it fit to set aside the impugned order on merits as also on limitation inasmuch as the demand for the period 1.4.08 to 31.3.09 stand issued by way of show cause notice dated 31.8.2010. - Decided in favor of assessee.
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2015 (2) TMI 478 - MADRAS HIGH COURT
Refund claim - Duty paid under protest - Goods Transport Agency - whether the appellant is entitled for refund of the service tax already paid - Held that:- Users of the service rendered by the Goods Transport Operators are liable to pay service tax. In the present case, the appellant is using the services of the Goods Transport Operators during different periods between 1997 to 1999. Hence, the appellant is liable to pay service tax. Since the appellant has already paid the service tax, as per the law laid down by the Supreme Court in the case of Gujarat Ambuja Cements Ltd. V. Union of India reported in [2005 (3) TMI 492 - SUPREME COURT], the question of refund will not arise and the appellant is not entitled for refund. Hence, the Tribunal is justified in confirming the order of the Original Authority declining to grant refund. - Decided against assessee.
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2015 (2) TMI 477 - GUJARAT HIGH COURT
Refund claim - Whether the Tribunal committed error in applying and extending the provisions of Rule 5(1)(D) of C.C.R. 2004 for the period prior to 17.3.2012; though Clause (D) of Rule 5(1) of C.C.R. 2004 is inserted later on - Held that:- Once it is 100% Export Unit, all expenses for such technical, testing and analysis services would be a part of the turn-over and the services exported cannot be separately connected on the ground as sought to be canvassed. - substantial questions of law as sought to be canvassed would not arise for consideration in the present appeals. It may also be recorded that the questions formulated by the Revenue are, as such, inter-connected, but based on the principal contention that unless it is established that a particular service was exported and foreign exchange was realized, the amount pertaining to technical, testing and analysis services by connecting therewith, the services exported would not be available. - There is no change in the provisions as it existed by Circular and subsequently incorporated in the Notification. Therefore, no such question would arise as sought to be canvassed. - Decided against Revenue.
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2015 (2) TMI 476 - CESTAT MUMBAI
Tour Operator Services - Appellant had conducted "Outbound Tours" of Haj-Umrah to Makkah and Madina, during the material period and did not discharge the service tax liability on the amounts so collected - Held that:- Following decision of M/s Cox & Kings India Ltd. vs. CST, New Delhi [2013 (12) TMI 1024 - CESTAT NEW DELHI] and this ratio has been followed by the Mumbai Bench in the case of Travel Corporation (India) Ltd. Thomas Cook (India) Ltd. vs. CST, Mumbai [2014 (8) TMI 826 - CESTAT MUMBAI] - this issue is squarely covered in favour of the appellant. Accordingly, in view of the foregoing and the judicial pronouncements, we find that the impugned orders are unsustainable and liable to set aside - Decided in favour of assessee.
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2015 (2) TMI 475 - CESTAT MUMBAI
Waiver of pre deposit - Business Auxiliary Service - difference between the discount extended by the automobile manufacturers and the discount extended by the appellant to the customers. - Held that:- The findings of the adjudicating authority as well as the first appellate authority indicates that the amount which has been shown by the appellant in his balance sheet as income is the difference between the discount which has been extended by the automobile manufacturers and the discount given by the appellant to the customers. This amount is shown as discount given by the appellant. We find that the learned CA is correct in bringing to our notice that identical issue in the case of Tata Motors Insurance Services Ltd. Vs. CST, Bangalore - [2007 (8) TMI 638 - CESTAT BANGALORE], the co-ordinate bench of this Tribunal has granted unconditional stay. Prima facie, we find that the appellant has made out a case for waiver of pre-deposit of the amount confirmed as service tax liability of approximately ₹ 3.70 lakhs. We consider the amount deposited by the appellant in respect of first two issues as enough deposit to hear and dispose of appeal on merits. Accordingly, the application for waiver of pre-deposit of balance amount is allowed and recovery thereof stayed till the disposal of the appeal. - Stay granted.
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2015 (2) TMI 474 - CESTAT MUMBAI
Denial of Refund claim - SEZ - appellant claimed refund of service tax paid on the input services received by them in terms of provisions of Notification No. 9/2009 dated 03.05.2009 as amended by Notification 15/2009-ST dated 20.05.2009 - Since the amended Notification provided for refund only in those cases where the services were not wholly consumed within the SEZ, the authorities below rejected the refund claim - Held that:- The Government has two schemes for granting exemption to services provided to SEZ Units where the services are wholly consumed within the SEZ the services being provided from outside are exempted from payment of service tax. Where these services were not wholly consumed within the SEZ, Notification 9/2009 read with Notification 15/2009 provided that the service receiver in the SEZ is eligible for refund of the tax paid on the input service. The matter is settled by the decisions of the Tribunal to the effect that even where the services are wholly consumed within SEZ, the Unit will be eligible for refund when tax has already been paid by the service provider. - Decided in favour of assessee.
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2015 (2) TMI 438 - CESTAT AHMEDABAD
Denial of CENVAT Credit - Invoices issued prior to registration - whether Cenvat Credit of Service Tax paid on input service can be denied to the appellant on the ground that invoices on the basis of which credit was taken are issued prior to registration of the appellants on 11/10/2004 - Held that:- Sutham Polyesters Limited vs. CCE, Coimbatore - [2005 (6) TMI 346 - CESTAT, CHENNAI], Well known Polyesters Limited vs. CCE, Vapi [2011 (1) TMI 664 - CESTAT, AHMEDABAD], Amar Remedies vs. CCE, Surat - [2010 (7) TMI 333 - CESTAT, AHMEDABAD] and CCE, Ahmd vs. Fine Care Bio-systems - [2009 (7) TMI 142 - CESTAT, AHMEDABAD] - Since the issue is covered in favour of the appellant by the precedent decisions of this Tribunal, respectfully following the same - Decided in favour of assessee.
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2015 (2) TMI 436 - CESTAT MUMBAI
Non maintenance of separate accounts - CENVAT Credit - Held that:- As regards the period prior to 1.4.2008 there was a cap of 20% of the credit taken with respect to utilization in case the credit pertains to both taxable as well as exempted services. There was no requirement that the utilization should be within the limit of 20% every month as held by this Tribunal in the case of Vijayanand Roadlines Ltd vs CCE, Belgaum - reported in [2006 (12) TMI 56 - CESTAT,BANGALORE] and Idea Cellular Ltd vs CCE, Rohtak reported in [2009 (2) TMI 91 - CESTAT NEW DELHI]. Thus for the period prior to April 2008, if the appellant had taken credit and the appellant had not utilized that credit in excess of the 20% of the credit taken there will not be any liability to reverse only excess credit taken. For the period 2008-09 to 2010-11, the appellant s contention is that they have maintained separate accounts and the ineligible credit taken by them would be only ₹ 5.81 lakhs. This is a question of fact and needs to be verified by the department. - Matter remanded back conditionally - Application disposed of.
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2015 (2) TMI 435 - CESTAT MUMBAI
Clearing and Forwarding Service - Demand u/s 73 - Held that:- Following decision of Commissioner of Central Excise, Aurangabad Versus M/s. Shetkari SSK Ltd. & Others [2011 (7) TMI 739 - CESTAT, MUMBAI] - impugned order is set aside - Decided in favour of assessee.
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2015 (2) TMI 434 - CESTAT NEW DELHI
Waiver of pre deposit - Airport services - Sale of tickets for visitors at IGI Airport - AAI allowed collection of service tax w.e.f. 02.03.2005 - Held that:- Prima facie, we are of the view that as per the decision of the Tribunal in the case of P.C. Paulose, [2007 (12) TMI 128 - CESTAT, BANGALORE] the activity of sale of tickets for visitors is not leviable to service tax. Therefore as there are contrary views in that case, allegation and suppression cannot be alleged against the applicants. In these circumstances, extended period of limitation is not invokable. Therefore, prima facie, the applicant has made out a good case for complete waiver of pre-deposit. Accordingly, we waive the pre-deposit and stay the recovery of impugned adjudicated liability during the pendency of the appeal. - Stay granted.
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2015 (2) TMI 433 - CESTAT AHMEDABAD
Admissibility of CENVAT credit on the courier services - Held that:- Following decision of CCE vs. Ambalal Sarabhai Enterprises Limited [2014 (1) TMI 118 - GUJARAT HIGH COURT] - CENVAT credit of service tax paid on Courier Services is admissible to the appellant. - Decided in favour of assessee.
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2015 (2) TMI 432 - CESTAT MUMBAI
Rectification of mistake - Delay in filing ST-3 returns - Held that:- It is seen that neither in the show cause notice nor in the impugned order the fact of filing of the return by the appellant on 28/03/2007 has been recorded anywhere. Therefore, we requested the Ld. A.R appearing for the Revenue to show us in which part of the order appealed against, this fact has been recorded or in which part of the show cause notice this fact is recorded. The ld. A.R fairly conceded that the fact of the ST-3 return having been filed on 28/03/2007 is neither mentioned in the order nor in the show cause notice. If that be so, Revenue cannot allege that this Tribunal has committed an error. Thus, this ground mentioned in the application of the rectification of the mistake is a new ground, which cannot be considered at this stage. Accordingly, we do not find any merit in the ROM application filed by the Revenue - Decided against Revenue.
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2015 (2) TMI 393 - CESTAT AHMEDABAD
Extension of stay order - Held that:- Following Larger Bench of the Tribunal in the case of M/s Haldiram India Pvt. Limited & others Vs Commissioner, Central Excise & Service Tax - [2014 (10) TMI 724 - CESTAT NEW DELHI (LB)], held that the Stay Order passed by the Tribunal may be extended after considering the necessary facts as it would authorize the exercise of discretion by the Tribunal for grant of such extension - Stay extended.
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2015 (2) TMI 392 - CESTAT MUMBAI
Receipt of services from abroad - sales promotion and marketing activities - Penalty u/s 77 & 78 - Suppression of facts - Bar of limitation - Held that:- From the agreement dated 03/01/2008 with MBT International Inc., USA it is clear that the said agreement was for market promotion of the services rendered by the appellant who is situated in India. Such sales promotion and marketing activities fall within the definition of 'business auxiliary services' which was taxable from 2003 onwards - A perusal of the section 66A makes it absolutely clear that the service tax liability is attracted when taxable services are received from a foreign service provider and the service recipient is situated in India and has its fixed establishment/permanent residence in India. - the liability to service tax on the consideration paid for the services received for the period on or after 18/04/2006, is beyond challenge and if there is a delay in payment of such service tax, the appellant would be liable to pay interest thereon on the service tax liability. Consequently, the demand of service tax in respect of 'business auxiliary services' received for the period 2006-07 has to be upheld and this amounts to ₹ 2,69,94,321/- and interest liability therein works out to ₹ 1,48,95,196/-. The demand for the period prior to 18.04.2006 is not sustainable in law in view of the decision of the hon'ble Bombay high Court in the case of Indian National Shipowners' Association [2008 (12) TMI 41 - BOMBAY HIGH COURT].
Extended period of limitation - Held that:- It is a fact on record that the appellant did not disclose this information in the ST-3 returns filed. The contention of the appellant that there was no specific column for declaration of the amounts paid lacks merits for the reason that the appellant has to declare the amounts received as the amounts billed or charged as the appellant is deemed as a service provider. Even otherwise, the appellant could have disclosed this information in the return with suitable remarks in this regard. Therefore, the non-disclosure of the details of the transaction in the ST-3 returns in spite of specific statutory mandate in this regard clearly amount to suppression of facts.
Court have perused the balance sheets and the balance sheets do not reflect the payments made for the various transaction separately. It only gives the gross amount of the expenditure incurred in terms of foreign currency. From that information it cannot be gathered, for what purpose the expenditure was incurred, whether it was for a taxable service or otherwise. Therefore, unless the details of the expenditure incurred are given, it is not possible to make any conclusion one way or other. It is on record that the appellant had not provided copy of the agreement to the department in respect of the services received from abroad and these were provided only in 2010 when the investigation commenced. Further, the exact details of the payments made in respect of the marketing promotion activities were given to the department for the first time only in January 2011 vide letters dated 05/01/2011 and 07/01/2011. The show cause notice has been issued on 24/04/2011 and, therefore, it cannot be said that the show cause notice is barred by limitation of time.
Wavier of penalty u/s 80 of the Finance Act, 1994. In the present case also, since clarity on the matter came with the decision of the hon'ble Bombay High Court in the case of Indian National Shipowners' Association (supra), the benefit of doubt could be extended to the appellant for non-disclosure of the information at the relevant time. Therefore, invoking the provisions of Section 80, we waive the penalty imposed on the appellant under Sections 76, 77 and 78 of the Finance Act, 1994. - Decided partly in favour of assessee.
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2015 (2) TMI 391 - CESTAT BANGALORE
Waiver of pre deposit - consulting engineers service or manpower supply service - Service tax not paid - Held that:- claim of the appellant that the service rendered was covered by manpower supply service has some validity. However this aspect has not been examined in detail by going through the concerned orders, schedules to the orders and the relevant invoices. Further the claim that subsequent to 16/06/2005, they have paid the tax under consulting engineers service was not made before the original adjudicating authority. Moreover, a small amount relates to IT support service which is also required to be considered since the IT service came into statute only in 2008 for the purpose of levy. Since the issues have not been examined in detail, the matter has to be remanded at this stage itself. - Matter remanded back - Decided in favour of assessee.
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2015 (2) TMI 390 - CESTAT BANGALORE
Delay in discharge of service tax liability - Penalty u/s 77 & 78 - Held that:- No plausible reason or explanation stands submitted by the appellant for non-payment of service tax in respect of the services in question. When the appellant was registered with the Department and was aware of his liabilities and was also paying service tax in respect of other services, the non-payment of service tax in respect of the present disputed services can only be a clear mala fide on his part. The fact of non-payment has, admittedly, come to surface on account of investigations conducted by the Revenue. As such, the deposit of service tax along with interest, subsequent to the investigations made by the Revenue, cannot be said to be covered by the provisions of Section 73(3) of the Finance Act inasmuch as the same cannot be held to be a voluntary payment. An assessee is compelled to accept and deposit the tax liabilities after it has come to the notice of the Revenue on account of investigations conducted by them. Such a course of action adopted by the appellant cannot save him from the penalty provisions. - appellant is admittedly liable to penalty. However, as they have deposited the service tax along with interest prior to issuance of the show-cause notice, I reduce the penalty amount to 25% of the tax - Decided partly in favour of assessee.
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2015 (2) TMI 389 - CESTAT NEW DELHI
Cenvat Credit - Denial of input service credit on the ground that appellant is a output service provider as well as engaged in the activity of trading- Penalty u/s 78 - Held that:- appellant is not entitled to take Cenvat credit of the common services used by them attributable to trading activity. - the appellant is not entitled to take Cenvat credit to the tune of ₹ 17,718/- attributable to trading activity.
Further, I find that the appellant were under bonafide belief that prior to 1.4.2011, trading activity was not an exempted services. Therefore, penalty on the appellant is not imposable. In these circumstances, penalty imposed on the appellant is set aside. - Following decision of Orion Appliances Ltd. vs. CST, Ahmedabad [2010 (5) TMI 85 - CESTAT, AHMEDABAD] - Decided partly in favour of assessee.
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2015 (2) TMI 351 - CESTAT MUMBAI
Financial advisory services - Banking and financial service - Whether assessee be classified as Banking and financial service agent - Held that:- To fall within the tax net, the appellant has to be a banking company or a financial institution including a non-banking company. Obviously, the appellant is not a banking company or a non-banking financial company. As per the definition of "financial institution" only when the appellant carries on business of acquisition of shares, bonds, debentures or securities issued by a Government or Local Authority or other marketable securities of a like nature, the appellant can be categorized as a financial institution. Merely because the appellant is registered as a stock broker with the SEBI, which is a statutory requirement the appellant cannot be considered as a financial institution. If that be so, all stock brokers dealing in shares/securities would be financial institutions which is a totally wrong interpretation of the statutory definition of a financial institution. There is also no evidence available on record to show that the appellant has been registered under the RBI Act as a "Financial institution". - Conclusion of the lower authorities that the appellant is a financial institution as defined in the RBI Act cannot be sustained. Accordingly, we set aside the impugned order - Decided in favour of assessee.
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2015 (2) TMI 350 - CESTAT NEW DELHI
Commercial or industrial construction services - change of classification to works contract service - Entitlement to benefit of Notification No.1/2006-ST - Held that:- Services were being rendered under ongoing projects on a continuous basis. It was not that the entire service was rendered on the date of entering into the contract. Thus, the classification of the services has to be done in accordance with the provisions of section 65 (105) ibid and with the introduction of the new service w.e.f. 01.06.2007, if the service got more appropriately covered under the scope of works contract service, it will have to be classified there-under in terms of Section 65 A of the Finance Act 1994. To that extent the Board's Circular is devoid of correct appreciation of the legal provisions.
It is claimed in the orders of the lower authorities that the said Board Circular has been upheld by the judgment of Andhra Pradesh High Court in the case of Nagarjuna Construction Company vs. Govt. of India - [2010 (6) TMI 91 - ANDHRA PRADESH HIGH COURT ]. We have perused the said judgment of Andhra Pradesh High Court and find that nowhere the High Court has said that the classification of ongoing services cannot be changed to works contract service, if the service was more appropriately classified there-under; what the High Court has, however, upheld is the Board s clarification that in respect of the ongoing projects where service tax had been paid earlier (prior to 01.06.2007), the benefit of the Composition Scheme is not available. Thus, the lower authorities are correct in holding that for such ongoing project the appellants were not eligible to avail of the Composition Scheme.
The appellants have contended that they have all the required evidence to be eligible for the benefit of Notification No.12/2003 or the Provisions of Rule 2A of the Service Tax (Determination of Value) Rules, 2006. Needless to say, however, that the onus remains on the appellants to demonstrate that they satisfy the conditions/requirements for the purpose of claiming the said benefit. - Matter remanded back with directions - Decided partly in favour of assessee.
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2015 (2) TMI 349 - CESTAT MUMBAI
Taxation of Services (provided from outside India and received in India) Rule, 2006 - Commission paid to overseas company- consideration was paid in foreign currency as commission, which is taxable w.e.f. 18.4.2006 on reverse charge basis in terms of Section 66A of the Finance Act, 1994, read with rule 3(i) of Taxation of Services (provided from outside India and received in India) Rule, 2006 - Bar of limitation - Invocation of extended period of limitation - Held that:- Whole demand relates to extended period. Further, the matter was in the knowledge of the Revenue since 8.9.2006 since the date of filing the writ petition. Thus there being a prima facie good case on limitation, it is fit and proper to allow stay of the balance demand of tax, interest and penalty till disposal of the appeal. - Stay granted.
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