|
Advanced Search Options
Service Tax - Case Laws
Showing 1 to 20 of 102 Records
-
2015 (4) TMI 1355
Levy of service tax - Tour Operator service - providing services in connection with religious trips Hajj and Umrah mainly to Mecca, Madina, Mina, Muzdalifa etc. - HELD THAT:- Both the sides agree that the issue involved in the present appeals has been considered by this Tribunal in the case of M/S COX & KINGS INDIA LTD., M/S TRAVEL CORPORATION OF INDIA LTD. AND M/S SWAGATAM TOURS PVT. LIMITED VERSUS CST, NEW DELHI [2013 (12) TMI 1024 - CESTAT NEW DELHI]. The Tribunal had decided the issue in favour of the appellant.
Appeal allowed.
-
2015 (4) TMI 1233
Jurisdiction of Bombay High Court to entertain appeal - Held that:- the respondents are situated at Silvassa. Under the circumstances, considering section 36(b) of the Central Excise Act, 1944, Bombay High Court would have jurisdiction to entertain the appeals against the impugned decisions and this High Court would not have any jurisdiction.
Registry is directed to return the Memo of both the appeals with Annexures to the appellant, to present appeals before the Bombay High Court having jurisdiction, i.e. in the present case Bombay High Court, after retaining the Xerox copies of the entire set of the appeals - appeal disposed off.
-
2015 (4) TMI 1231
Renting of immovable property service - Non-payment of service tax - rent for allotment of plots of vacant land to various persons on lease for industrial and commercial purposes - Held that: - the definition of expression of “renting of immovable property” read with Explanation will include the lease of various plots allotted by the assessee for business/commercial purposes and rent charged/collected in respect of the lease so executed would necessarily be subjected to Service Tax - the term/period of the lease whether it is for short duration or for 90 years or perpetuity makes absolutely no difference to the meaning of the expression “renting of immovable property” - The contention of the assessee that since long term lease of 90 years/perpetuity would virtually amounts to transfer of ownership of the land does not appeal to us especially in view of the simple meaning of the language use in the aforesaid sections.
The plea of the appellant that it is performing statutory duties and is a creation of a statute and therefore cannot be subjected to Service Tax does not appeal to us - Suffice is to mention that the Finance Act, 1994 makes no distinction between a statutory body i.e. a juristic person and an individual.
If a sovereign/public authority provides a services, which is not in the nature of an statutory activity and the same is undertaken for a consideration (not a statutory fee), then in such cases, Service Tax would be leviable as long as the activity undertaken falls within the scope of a taxable service as defined.
The statute permits such activities of letting out of immovable property for augmenting its finances but the same cannot be termed as the service in public interest nor it is a mandatory or statutory functions of the Development Authority - such activity of leasing do constitute a taxable service.
Appeal dismissed - decided against appellant.
-
2015 (4) TMI 1178
Refund of excess tax paid - benefit of N/N. 12/2003-ST - Held that: - the tax liability have not been computed, which was a basic requirement for deciding the refund claim of the appellant - there has been miscarriage of Justice - the appellant will be entitled to benefit of N/N. 12/2003-ST, if it is evident from their bills, the amount of material component or the cost of food and beverages supplied, but if the appellant have raised a consolidated bill/amount for the Mandap Keeper Service inclusive of catering charges, then they will be entitled to benefit of N/N. 12/2001-ST, as amended - matter remanded to the Assistant Commissioner, who shall re-compute the tax liability, as per the directions given by this Tribunal - appeal allowed by way of remand.
-
2015 (4) TMI 1166
Waiver of pre-deposit - whether the writ petitioner has been able to make out such a strong prima facie case that entitled it to a waiver of the entire pre-deposit in connection with the appeal before the CESTAT?
Held that: - the writ petitioner has made out a reasonably strong prima facie case in support of its contention that service tax is not attracted for transfer of technical know-how to the petitioner from its parent company in Switzerland. The Tribunal, in similar other cases, has granted unconditional stay of the Commissioner’s order on the basis of strong prima facie case and, there is no reason why the petitioner should be treated differently.
It is settled law that a discretionary power must be exercised in favour of the assessee unless there is a good reason to the contrary. No reason has been disclosed by the Tribunal for refusing to exercise the discretion of full waiver of the pre-deposit in favour of the petitioner.
Pre-deposit waived - petition allowed - decided in favor of petitioner.
-
2015 (4) TMI 1128
Challenge to the show cause notice - demand of service tax - Held that:- Petitioner instead of replying to show cause notice has approached this Court assailing the correctness of same on various grounds. - without expressing any opinion on the contentions raised, writ petitions are dismissed.
-
2015 (4) TMI 1118
Imposition of penalty - Liability of Service tax - Dredging services i.e. desilting of Mithi River - Held that:- by applying the decision of this Bench in the case of Reliance Michigan (JV) v. CCE Thane II [2013 (7) TMI 236 - CESTAT MUMBAI], the appellant is liable to discharge his service tax liability along with interest thereof and the penalty of ₹ 1000/- imposed on the appellant under Section 77 of Finance Act, 1994 is upheld.
As regards the penalties imposed under Section 76 and 78 of Finance Act, 1994, it is found that the elements of suppression of facts or mis-statement with intent to evade the service tax are absent in this case as the contract of so-called desilting was awarded by the Government of Maharashtra and the entire issue was in the public domain. Therefore, non-payment of service tax by the appellant would be due to mis-interpretation of the provisions of the Finance Act, 1994. Accordingly, we, by invoking the provisions of Section 80 of the Finance Act, 1994 as it was during the relevant period, set aside the penalties imposed under Sections 76 and 78 of the Finance Act, 1994. - Appeal disposed of
-
2015 (4) TMI 1111
Entitlement for refund - 25% of penalty imposed paid in respect of adjudication order which was waived by the Commissioner (Appeals) in its order- Commercial or industrial construction service - Department submitted that once the assessee exercises the option of payment of 25% of the penalty, he deemed to have accepted the demand of Service tax made under Proviso to Section 73 of the Finance Act, 1994 and penalty under Section 78 ibid and therefore the assessee cannot take recourse of filing appeal for setting aside the penalty.
Held that:- no legal provision is found which provides that once an assessee pays the entire demand with interest and penalty to the extent of 25% of the Service tax demanded, cannot challenge either the liability of Service tax and interest or penalty alone and the matter has to be treated as closed. No doubt, there is an instruction issued by the Board that once the assessee pays the Service tax and interest and intimates the department of the same on the basis of assessment of tax liability of the Central Excise Officer no show cause notice for differential amount of Service tax or interest can be demanded after one year except where there is a case for invoking suppression of facts, misdeclaration, fraud, etc.
Further, there is no law laid down anywhere that the matter has to be considered as settled when an assessee pays the tax demanded with interest and penalty in accordance with law. It is only provided in the case of Settlement Commission where the Settlement Commission decides the issue and amounts as per the Settlement Commission are paid by the assessee, he has no right to challenge. I am not dealing with the decisions of Settlement Commission but decision of the adjudicating authority which was considered by the learned Commissioner (Appeals). - Decided against the revenue
-
2015 (4) TMI 1098
Rectification of mistake - Refund claim filed under Rule 5 of CENVAT Credit Rules, 2004 read with Notification No. 5/2006-ST by the appellant but adjudicating authority considered the claim's as per the provisions of Notification No. 41/2007 - Service tax paid on input services received & used in relation to manufacture - Held that:- “that the appellant had filed the claim of refund under Rule 5 of CENVAT Credit Rules” be read as “that the appellant had originally filed the refund claim under Notification No. 41/2007” but had subsequently prayed that the refund may also be considered under the provisions of Rule 5 of the CENVAT Credit Rules, 2004. In this view of the matter there is no mistake in the order of the Tribunal, except as taken notice of hereinabove. The adjudicating authority is directed to consider the refund claim under both the Notification No. 5/2006-ST and Notification No. 41/2007-ST, in view of the several decisions rendered by Tribunal & High Court
-
2015 (4) TMI 1070
Refund claim - Commercial or Industrial Construction Services - Appellant constructed building being used as the hostel for the residence of students studying in medical institute and contended that they are not covered under any of the taxable category - Held that: the building constructed was used as hostel for the residence of students studying in medical institute and was not for any other purpose. So, by taking the facts of Board Circular No. 80/10/2004-S.T., dated 10.9.2004, which clearly states that the leviability of Service Tax would depend primarily upon whether the building or civil structure is ‘used or to be used’ for commerce or industry. The information about this has to be gathered from the approved plan of the building or civil construction. Such constructions which are for the use of organizations or institutions being established solely for educational, religious, charitable, health, sanitation or philanthropic purposes and not for the purposes of profit are not taxable being, non-commercial in nature. Therefore, service tax was not liable on appellant and as it has wrongly paid, can claim for refund. - Decided in favour of appellant with consequential relief
-
2015 (4) TMI 1068
Revision of refund claim - IT enabled Services- - Appellant provided IT services which were exported and was eligible to avail Cenvat credit and claim the refund of the service tax paid by the service provider if it remains unutilised but the services rendered by the service provider is in the premises for which registration was not granted to the appellant - Held that: The service which was rendered and on which the Cenvat credit was availed by the appellant, are of input services in respect of the output services which is provided by the appellant i.e. IT enabled service. Also the output services which are provided by them is from their registered premises and that has got centralised accounting system. Subsequently, the appellant has registered or added the addresses from wherein the services were received for providing export services; in the registration certificate, which is an indication that the appellant is eligible to avail input service credit and having exported the services is eligible for the refund of the amount lying unutilised. Therefore, refund claim is revisable. - Decided in favour of appellant
-
2015 (4) TMI 1063
Refund of cenvat credit - Nexus between input and export of output services - Held that:- t any input service which has a nexus with the business of manufacture or relating to business would get covered under the term 'input service' under Rule 2(l) of the Cenvat Credit Rules and accordingly Cenvat credit on such services would be available. - service tax paid on car parking rentals is an eligible input service under Rule 2(l) of the Cenvat Credit Rules and consequently the appellant would be eligible for refund of the same under Rule 5 of the Cenvat Credit Rules, 2004 read with Notification No. 5/2006-S.T., dated 14-3-2006. - Refund allowed - Decided in favor of assessee.
-
2015 (4) TMI 1062
Writ petition against the adjudication order - Though various grounds have been raised assailing the impugned orders, this Court is not inclined to entertain the writ petitions, as the impugned orders passed by the respondent are appealable under Section 85 of the Finance Act. - Petition dismissed for want of alternative remedy.
-
2015 (4) TMI 1056
Service Tax on ‘Renting of Immovable Property Service’ - issuance of show cause notice to wrong partly - Held that:- . The Hon’ble High Court [2013 (9) TMI 791 - KARNATAKA HIGH COURT] has held that the unit to whom the show cause notice was issued cannot be considered as person and since the property is belonging to CSI TA, the proceedings should have been initiated against CSI TA and not against the units. The Hon’ble High Court quashed the Order-in-Original passed by the Commissioner is quashed. - In view of above discussion, the impugned orders are set aside and the appeals are allowed with consequential relief, if any. - Decided against the revenue.
-
2015 (4) TMI 1039
Validity of revision order u/s 84 - Demand of Service tax - penalty under Sections 76, 77 and 78 - Benefit of Section 80 - Jurisdiction of revisional authority - Held that:- On the date of issue of show cause notice for revision, the assessee’s appeal against the same order-in-original dated 15.02.2007 was pending before the Commissioner (Appeals) and therefore as per Section 84(4) quoted above, the said order-in-original could not have been taken up for passing the revision order. Further, the Commissioner (Appeals) issued the order-in-appeal on 03.04.2008 and consequently the order-in-original dated 15.02.2007 got merged in the said order-in-appeal dated 03.04.2008 and so on the date of issue of the revisionary order dated 23.01.2009, there was no order-in-original in existence which could be thus revised in terms of Section 84 of the Finance Act, 1994. - it is evident that the order of revision has been issued without jurisdiction - Decided in favour of assessee.
-
2015 (4) TMI 1038
Denial of refund claim - services received for export of the goods under Notification No. 17/09 ST dated 7.7.09 - Held that:- Commissioner (Appeals) has given clear cut finding that on merits, respondent is entitled to refund claim and sent the matter back to the adjudicating authority for processing the claim. The contention of the revenue is that process of refund claim sent to the lower authority is a remand of the appeal is not correct. Infact the understanding of the remand order by the departmental officer is very unfortunate to understand that if the case has been decided on merits and same is sent to lower authority for processing the same and if it is remand option for deciding and the department would act to remand only. Therefore, understanding of the departmental officer as well as learned AR that if refund claim is allowed and send to the lower authority for processing the same amounts to remand is not correct. In these circumstances, I do not find any merit in the Revenue’s appeal - Decided against Revenue.
-
2015 (4) TMI 1037
Levy of penalty - Commission agent service - Reverse charge mechanism - Held that:- There is no case of active concealment or contumacious conduct made out against the appellant. Further the transactions were recorded in the books of account maintained in ordinary course of business. The cogent explanation given by appellant was not found untrue. The Commissioner (Appeals) have confirmed penalty on assumption & presumptions, which are not tenable. In this view of the matter the penalty imposed under Section 78 is set aside - Decided in favour of assessee.
-
2015 (4) TMI 1006
Scope of Continental Shelf and Exclusive Economic Zone of India for the purpose of service tax - Legislative intent - Interpretation of Notification No.1/2002-Service Tax dated 1.3.2002, as amended by Notification No.21/2009-ST dated 7.7.2009 and the Notification No.14/2010-ST dated 27.2.2010 - whether the Notification No. 14/2010-ST dated 27.2.2010 is clarificatory / declaratory in nature - whether during the aforesaid period, the appellant was also liable to pay the service tax on the services rendered by these vessels for the purpose of prospecting mineral oil and as such for the services consumed by continental shelf of India or exclusive economic zone of India.
Held that:- If the statute uses the words "it is declared" or "it is clarified for removal of doubts", then it will be presumed that the amending law is declaratory or clarificatory. However, merely using the said words would not be sufficient to conclusively hold that the Act is declaratory. Even by use of such words, a statute may introduce new rules of law and that in such case, it would amount to substantial change in the law and will not be necessarily retrospective. It has been held that for determining the nature of the Act regard must be had to the substance rather than the form. It has been held that if a new Act is to explain an earlier Act, it would be without object unless construed retrospectively. It has been further held that an explanatory act is generally passed to supply an omission or to clear up doubts as to meaning of previous Act. However, in the absence of clear words indicating that the meaning of the Act is declaratory, it would not be so construed when the pre-amended provision was clear and unambiguous.
2002 Notification was issued under the provisions of the Maritime Zones Act on 1.3.2002 thereby extending provisions of Chapter V of Finance Act to the designated areas in the continental shelf and exclusive economic zone of India as declared by the Notification of the Government of India in the Ministry of External Affairs dated 18.7.1986 and 19.9.1996 with immediate effect. It would thus be seen that for the first time from 1.3.2002, the areas in respect of which the notifications were issued in 1986 and 1996 were brought under the purview of the service tax. However, the notification only extended the applicability of service tax to the areas which were covered under the said notifications of 1986 and 1996. Even after issuance of 2002 notification, the provisions of Chapter V of the said Act did not apply to the other areas in the continental shelf and exclusive economic zone of India which were not covered by the said notifications.
Plain reading of the 2009 Notification would give a clear meaning and it cannot be said to be obscure. The words are clear and plain capable of giving only one meaning that the provisions of Chapter V of the Finance Act are extended to the installations, structures and vessels in the continental shelf and exclusive economic zone of India. We find that the words used in the said notification are not capable of giving two meanings. - the 2010 Notification cannot be said to be clarificatory in nature, but it brings about substantive change in law. Whereas the 2002 Notification as amended by 2009 Notification is applicable only to the services rendered to installations, structures and vessels, the 2010 Notification widens the tax scope and amongst various other services also brings into the service tax net the services rendered to or by the installations, structures and vessels.
It can thus be seen that the present transaction, which is in the nature of providing services by the vessels of the appellant for the purpose of prospecting mineral oil and as such is a service consumed by the seabed of Continental Shelf of India would come in the tax net only after 2010 Notification came into effect. We are of the considered view that the said service cannot be said to be a service rendered to the installations, structures and vessels. Not only this, but the Respondent also in the order- in-original has noted that the appellant is discharging applicable service tax on the services received by installations, structures and vessels in the Continental Shelf and Exclusive Economic Zone of India but was not discharging the service tax on services consumed by the seabed of Continental Shelf of India. - Decided against the revenue.
-
2015 (4) TMI 1005
Valuation - Commercial Coaching or Training Service - Students make 100% payment to M/s Aptech Ltd. - Assessee gets only 80% of such fees and discharge service tax on 80% - Whether appellant is required to discharge service tax liability on an amount which represents 20% as retained by M/s. Aptech Ltd - held that:- students issue the cheques for the payment of fees in the name of M/s. Aptech Ltd. It is on record that appellant is not receiving any amount from the students directly. The provisions of Section 67 of the Finance Act, 1994 envisage for considering the gross value for discharge of service tax liability. The said section specifically provides that the gross value which is charged for the services has to be considered for payment of service tax liability. In the case in hand, the amount received by the appellant for the provision of services under the category of ‘Commercial Coaching or Training Services' is the 80% of the amount paid by the students, as students make 100% of the payment directly in the name of M/s. Aptech Ltd. If that be so, appellant has correctly discharged the service tax liability on an amount received by him for the services rendered under the category of ‘Commercial Coaching or Training Services'. - impugned orders are unsustainable and liable to be set aside - Decided in favour of assessee.
-
2015 (4) TMI 1004
Penalty u/s 78 - waiver of penalty u/s 80 demand of differential service tax leviable on sugarcane transportation charges and inward freight charges - Held that:- During the material period i.e. upto August 2008, the issue was being agitated and the appellant had also taken a plea that due to financial crisis they were not able to pay the balance amount on transportation of sugarcane and inward transportation of stores material. We find that in this case, non-discharge of service tax liability is not due to ulterior motive but due to financial difficulties that was faced by the appellant. In our view it is a fit case for us to invoke the provisions of Section 80 of the Finance Act, 1994 and we do so. By invoking the provisions of Section 80 we set aside the penalty imposed by the adjudicating authority and upheld by the first appellate authority while upholding the confirmation of demand of service tax liability and the interest thereof. - Decided partly in favour of assessee.
........
|
