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Service Tax - Case Laws
Showing 81 to 100 of 102 Records
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2015 (4) TMI 287 - CESTAT MUMBAI
Levy of penalty - waiver of the penalties in terms of Section 80 of the Finance Act, 1994 - appellant is not contesting the demand of service tax which they have admittedly paid along with interest - sale of SIM Cards of BSNL - Receipt of commission - Held that:- Following decision of G.R. Movers vs. CCE, Lucknow reported in [2013 (6) TMI 339 - CESTAT NEW DELHI], Daya Shankar Kailash Chand vs. CCE&ST, Lucknow reported in [2013 (6) TMI 340 - CESTAT NEW DELHI] and CCE, Meerut vs. Virendra Electric Works reported in [2013 (6) TMI 317-CESTAT New Delhi] - service in question itself is held as non-taxable. Therefore, the bona fide of the appellant stands proved. In the facts and circumstances of the case and other non-taxable nature of the service, Section 80 is clearly invokable. - invoking Section 80, the appellant is not liable for penalties under Sections 76, 77 and 78 of the Finance Act - Decided in favour of assessee.
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2015 (4) TMI 254 - MADRAS HIGH COURT
Benefit of Cenvat credit - outdoor catering services - services provided in the factory for employees of the factory and outward freight services - whether the assessee can utilise the cenvat credit facilities in respect of outdoor catering services, provided in the factory for its employees and outward freight service as input service - held that:- Court dealt with the issue with regard to outdoor catering service, in a batch of appeals in [2015 (3) TMI 736 - MADRAS HIGH COURT] held in favour of the assessee by following the decision of the Bombay High Court in the case of CCE V. Ultratech Cement Ltd. reported in [2010 (10) TMI 13 - BOMBAY HIGH COURT], wherein all the contentions raised by the Revenue has been considered in extenso including the definition of 'input service' as defined in the case of Maruti Suzuki Ltd. V. CCE reported in [2009 (8) TMI 14 - SUPREME COURT] . The Bombay High Court came to the conclusion that the decision of the Larger Bench of the CESTAT in the case of CCE V. GTC Industries Ltd. [2008 (9) TMI 56 - CESTAT MUMBAI] is a correct law, however, with a rider that where the cost of the food is borne by the worker, the manufacturer cannot take credit of that part of the service tax which is borne by the consumer. - Therefore, the issue as decided by the Tribunal and the various Courts clearly settled the issue that the Cenvat Credit has been properly availed in respect of outdoor catering services.
Outward freight charges - Held that:- Kanartaka High Court in the case of CCE V. ABB Ltd., Bangalore reported in [2011 (3) TMI 248 - KARNATAKA HIGH COURT], which was rendered on the appeal filed by the Department as against the decision of the full Bench of the Tribunal, while answering the issue whether the services availed by a manufacturer for outward transportation of final products from the place of removal should be treated as an input service in terms of Rule 2 (1) (ii) of the CENVAT Credit Rules, 2004 and thereby enabling the manufacturer to take credit of the service tax on the value of such services - Decided against Revenue.
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2015 (4) TMI 253 - MADRAS HIGH COURT
Cenvat credit - service tax paid on Access Deficit Charges - input service - Whether the Tribunal has fallen into error by holding that Access Deficit Charge is an Input Service as per the definition in Rule 2(l) of the Cenvat Credit Rules, 2004 - Held that:- Finding of fact by the Tribunal that the facility provided by BSNL to the assessee, who, in turn, provide such services to their subscribers, is nothing but a telecom service is justified. The Department has not produced any material to contradict this finding of fact. - A plain reading of Rule 2(l) of the Cenvat Credit Rules, 2004 makes it clear that the assessee in this case is the user of the service provided by BSNL and that service is used for providing output service to the customers of the assessee. Therefore, the definition squarely applies to the facts of the present case. Since the assessee has satisfied the requirement of Rule 2(l) of the Cenvat Credit Rules, 2004, the Department was not justified in taking a different view contrary to the said provision. - no reason to interfere with the order of the Tribunal - Decided against Revenue.
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2015 (4) TMI 252 - CESTAT NEW DELHI
Demand of service tax - Various services - Travelling expenses component of foreign currency expenditure - Held that:- In spite of noting that these expenses were on foreign trips of employees, the adjudicating authority states "but still no service tax has been paid by the party" without even mentioning for which taxable service. This is shoddy. In any case, the reimbursements made towards travelling expenses are not liable to service tax as there is no evidence that the same are in relation to any taxable service. - adjudicating authority has not undertaken any analysis of the appellants' submissions and merely records a fiat that the appellants are liable to pay service tax in spite of taking note of the appellants' submissions that they did not provide such services and merely reimbursed a part of marketing expenses. On the other hand, the appellants have been able to show that these amounts were actually expenses at their hands, which is also evident from the various schedules of profit and loss account, where they have been booked as expenses. Obviously, therefore, these expenses cannot be relating to the services rendered by the appellants also because if the appellants had actually rendered any such service, it would have generated an income for them and not expenses.
Advertising and Marketing Expenses in Foreign Currency - The appellants claimed and submitted details showing that out of the expenses on advertising service, for payments made to various advertising agencies abroad, they have paid the service tax under reverse charge mechanism along with interest for the period 2006-07 to 2011-12. They had not paid service tax upto 2005-06 on such payments as the reverse charge mechanism came into effect with the introduction of Section 66A in the Finance Act, 1994 with effect from 18.04.2006. That the "reverse charge mechanism" did not have any legal basis prior to 18.04.2006 is no longer res integra and, therefore, idle parade of familiar judicial pronouncements in this regard (like Indian National Shipowners Assn Vs. Union of India) [2008 (12) TMI 41 - BOMBAY HIGH COURT] is avoidable - Appellant also asserted that they had not paid service tax on such foreign exchange expenses shown under this head which related to purchase of materials. In the absence of any evidence to the contrary, as the onus lies on the Department, it will have to be held that Revenue is not able to establish that any more service tax is leviable under this head than what has been discharged by the appellants along with interest.
"Marketing Support" (including Marketing Support, Advertising and Sales Promotion) - adjudicating authority has not undertaken any analysis of the appellants' submissions and merely records a fiat that the appellants are liable to pay service tax in spite of taking note of the appellants' submissions that they did not provide such services and merely reimbursed a part of marketing expenses. On the other hand, the appellants have been able to show that these amounts were actually expenses at their hands, which is also evident from the various schedules of profit and loss account, where they have been booked as expenses. Obviously, therefore, these expenses cannot be relating to the services rendered by the appellants also because if the appellants had actually rendered any such service, it would have generated an income for them and not expenses.
Income from lease of property - adjudicating authority in subsequent paras merely reproduced the legal definitions relating to "renting of immovable property service" "supply of tangible goods for use in India" and "Business Auxiliary Service" and thereafter simply moved on to the next component of demand namely "Income from Lease Vehicles" without even a whisper of any analysis and finding about the sustainability of this component of demand relating to what is called "Income from Lease of Property". This is nothing but a cavalier and careless attitude on full display. The appellants actually showed with reference to their profit and loss account that these were their expenses, which were incurred on leasing the immovable property for their use. Thus they were the recipient of the said service and therefore the question of they being liable to pay service tax is preposterous; it not being a case of import of service inviting reverse charge mechanism.
It is admittedly unusual to copiously and verbatim quote paragraphs after paragraphs from the adjudication order. However, it was felt necessary in the present case to do so to drive home the point that the adjudicating authority has been highly and conspicuously non-speaking, non-reasoned, arbitrary and cavalier while passing the impugned order. Non-application of mind (on the part of the adjudicating authority) is indeed writ bold and large across the impugned order. Such orders adversely and severely impinge upon the public's trust in the public authorities and for that reason a public authority displaying such egregiously irresponsible conduct and that too while performing quasi-judicial functions deserves to the put to costs. Accordingly, we set aside the impugned order - Costs imposed - Decided in favour of assessee.
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2015 (4) TMI 219 - CESTAT MUMBAI
Business Auxiliary Services - Mandap Keeper service - Commission agent service - Held that:- Commission Agent must act on behalf of another person for provision of service. In his order, Commissioner (Appeals) has simply reproduced the definition of ‘Commission Agent' and not explained as to why this definition is applicable in the present case. He has not established that the appellant while acting as a Commission Agent was actually acting on behalf of the decorator for providing or receiving service. The appellant himself is providing the services of Mandap Keeper independently to his clients. And the decorator provides the service of decoration to some clients. The two services are independent of each other. The appellant is not acting on behalf of the decorator to provide service to his clients, nor is he acting on behalf of the decorator to provide service to the decorator. Therefore, the activity of the appellant is not that of the Commission Agent falling under the definition of Business Auxiliary Services.
When the Mandap Keeper accords monopoly right of a caterer for providing catering or decorator service to client who hired the Mandap Keepers' premises, no services are provided to the hirer by the Mandap Keeper and service is only provided to the hirer by the decorator. The conclusion arrived at by the Commissioner (Appeals) is not based on any reasoning with reference to the definition of Commission Agent and the definition of Business Auxiliary Services, and is rejected. We set aside the demand duty. Consequently, the question of imposing interest and penalty does not arise. - Decided against Revenue.
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2015 (4) TMI 218 - CESTAT MUMBAI
Waiver of pre deposit - 'site formation' or 'works contract' service - Held that:- prima facie case in favour of the appellant, as natural component in 'site formation' or 'works contract' cannot be taxed, further service tax being destination based, there is no scope of double collection from the main contractor & sub-contractor. - Stay granted.
As regards admitted liability on GTA Services or other services - tax liability admitted by the appellants - appellant directed to deposit ₹ 10,00,000, within a period of six weeks - Partial stay granted.
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2015 (4) TMI 217 - CESTAT CHENNAI
Exemption under Notification No.59/98-S.T., dated 16.10.1998 - Management Consultancy, Man-power Recruitment Agency Service - whether the appellants, the Practicing Chartered Accountants are eligible for benefit of the said notification from rendering service covered under the "Management Consultancy Services" - held that:- A benefit available on a plain reading of the notification cannot be denied retrospectively by issuing a notification. The Explanation introduced under Notification No.15/2002-S.T., dated 01.08.2002, therefore, takes effect only from the date of its issue. Therefore, ‘Man-power Recruitment Agent' it rendered during the period 16.10.1998 to 31.07.2002 confirmed in the impugned order cannot be sustained. - decision in the of M/s Deloitte Haskins & Sells Versus The Commissioner, C&ST, Ahmedabad [2014 (12) TMI 43 - CESTAT AHMEDABAD] followed - Decided in favour of assessee.
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2015 (4) TMI 216 - CESTAT BANGALORE
Business Support Service or Telecom Service - Overseas company providing dedicated leased lines - Classification controversy involving interpretation of law - Appellant for the material period April 2009 to March 2010 discharged tax liability in respect of Telecom service - Held that:- It is clearly mentioned therein that for the period April 2009 to March 2010, the service tax payable has been calculated in respect of Telecom service and paid. Even though the dispute is about 'business support service', in the order as well as in the documents, it comes out clearly that 'telecom service' has been considered as 'business support service' and therefore, the payment can be related to the adjudication order. Accordingly, we agree with the appellant that the amount paid by them can be considered towards the dues in this case - Partial stay granted.
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2015 (4) TMI 173 - CESTAT MUMBAI
Denial of refund claim - refund claims of an amount paid by the appellants on a direction of the DGCEI - 'Construction of Complex Service - Held that:- It can be seen from the above section 73(3) that the said section is not ambiguous and very clearly lays down that the Central Excise officer shall not serve any notice on the appellant if the payment which has not been paid or has been short-paid is ascertained by the Central Excise officer and paid before the service of notice, no notice requires to be issued to the assessee. The provisions of sub-section are very clear and if no notice is issued to the appellants under Section 73(1) of the Finance Act, 1994, it would mean that the tax liability discharged by the appellants would be the tax as accepted and paid by him. In our considered opinion, when the appellants themselves had discharged the tax liability, there cannot be any refund of the amount as the issue is considered as 'closed' by the revenue authorities. - No infirmity in impugned orders - Decided in favour of assessee.
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2015 (4) TMI 172 - CESTAT MUMBAI
Demand of service tax - Manpower recruitment or supply agency services - Violation of principle of natural justice - Opportunity of hearing not granted - Held that:- Grievance of learned Counsel of the appellant as to they were not given an effective to personal hearing seems to be correct. We find that the adjudicating authority has confirmed substantial amount as service tax liability without affording another opportunity to the appellant for defending the case personally. In our view, the impugned order is passed in violation of principles of natural Justice. - Matter remanded back - Decided in favour of assessee.
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2015 (4) TMI 171 - CESTAT MUMBAI
Penalty u/s 76, 77 & 78 - Invocation of Section 80 - Held that:- Reason which has been pleaded by the appellant before the first appellate authority as well as before us for short levy or non-levy of service tax is on account of liquidity crisis which got worse because of various Court petitions filed by their lenders and creditors. This particular plea has not been contraverted by the revenue in the Order-in-Original or the impugned order. In our considered view, the reason the appellant has given is justifiable reason for setting aside the penalty imposed on them; which the Adjudicating Authority has rightly done so by not imposing penalties under Section 76 & 77 of the Finance Act, 1994. We invoke the provisions of Section 80 of the Finance Act, 1994 and set aside the penalty imposed under Section 78 of the Finance Act, 1994 as upheld by the impugned order. - Decided in favour of assessee.
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2015 (4) TMI 130 - PUNJAB & HARYANA HIGH COURT
Restoration of appeal - Appeal dismissed for non compliance of pre deposit order - Whether the Tribunal was justified in dismissing the appeal on account of the failure of the appellant to deposit the amount of ₹ 50 lacs inspite of the fact that sufficient cause had been shown that the appellant was not undertaking any cleaning service and was only lifting the fly ash for M/s National Fertilisers Ltd. - Held that:- After hearing counsel for the parties and keeping in view the fact that out of the total demand of service tax of ₹ 74,88,396/- raised, the Tribunal itself has given benefit of ₹ 21,49,623/- and therefore, the penalty element also would not be payable. Similarly, keeping in view the fact that a Co-ordinate Bench of the Tribunal has prima facie held, in similar circumstances, that the mechanical process of removing fly ash does not fall within the ambit of service tax, the appellant is not liable to deposit ₹ 29,60,791/- on the said head along with the penalty which has been levied. - appeal was not liable to be dismissed on account of noncompliance of the earlier order dated 06.05.2013. Accordingly, the stay order dated 02.09.2013 (Annexure A-6) is set aside - Decided in favour of assessee.
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2015 (4) TMI 129 - CESTAT MUMBAI
Business Support Services - nature of receipt - repayment of loan or advance towards services to be rendered - whether the sum of ₹ 1,493/- crores received by the appellant from RCM is an advance for the taxable services rendered or to be rendered by the appellant to M/s. RCM or is it a loan by way of Inter Corporate Deposits given to the appellant - Held that:- On details scrutiny of the balance sheets produced by the learned Counsel for appellant, we find that accounts of the appellant as well as RCM do not indicate any co-relation in the repayment of the loan and receipt of the service charges by the appellant. The emphasis of the Revenue that the agreement between the appellant and RCM very clearly indicates that an amount of ₹ 283/- crores was to be adjusted against the service charges would also not carry the case of the Revenue any further as the appellant as well as RCM being a public limited companies, have clearly indicated in their balance sheets that the amounts have been shown as received and loans repaid. - provisions of Section 67 of the Finance Act, 1994 refers to gross service charges paid or payable for the services rendered or to be rendered has to be read as it is. In our view, the entire sum of ₹ 1,493/- crores does not qualify as an advance towards the services to be rendered by the appellant to RCM. - Decided in favour of assessee.
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2015 (4) TMI 128 - CESTAT NEW DELHI
Denial of benefit of Abatement Notification of 67% on the ground that Cenvat Credit has been availed - Credit was reversed subsequently - Notification No.15/2004-ST dated 10.6.2004 as amended by Notification No.1/2006-ST dated 1.3.2006 - Held that:- since the cenvat credit has been reversed, benefit of abatement cannot be denied - demand and penalty set aside - However interest is imposed from date of availment upto the date of reversal of credit - Decision in the case of Chandrapur Magnet Wires pvt. ltd. (1995 (12) TMI 72 - SUPREME COURT OF INDIA) followed - Decided partly in favour of assessee.
Management, Maintenance and Repair service - Invocation of extended period of limitation Held that:- The contracts were signed before 1.7.2003 and bills were raised prior to 1.7.2003. But actually services may have been rendered by them prior to and after 1.7.2003. No delineation of services rendered before 1.7.2003 and after 1.7.2003 has been made. During the arguments, it appeared that such categorization is not available in the records. - On merits there appears to be no doubt the service rendered after 1.7.2003 will be leviable to service tax. However, relying on the case of PT Education and Training Services (2008 (12) TMI 82 - CESTAT, NEW DELHI), we hold that as the issue relates to interpretation of provision of law, imposition of penalty and extended period of limitation are not warranted. - demand alongwith interest and penalties are set aside on limitation. - Decided in favor of assessee.
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2015 (4) TMI 127 - CESTAT AHMEDABAD
Refund of amount deposited as service tax during investigation - period of limitation - unjust enrichment - Business Auxiliary Service - Held that:- Appellant during investigation, deposited an amount of ₹ 6,85,200.00 through TR6 challan - Commissioner (Appeals) modified the adjudication order and reduced the demand of duty and accordingly the proportionate deposit was appropriated against the said demand - Adjudicating authority returned the deposit amount as per claim of the appellant. By the impugned order, the Commissioner (Appeals) allowed the appeal of the Revenue on the ground that the appellant has not filed their claim within one year from the date of order of the Commissioner (Appeals) and it is hit by limitation under Section 11B of the Central Excise Act 1944. I find that there is no dispute that the appellant deposited the amount during investigation. - decision in the case of Bajaj Auto Ltd (2007 (1) TMI 408 - CESTAT, MUMBAI) is directly applicable in the present case, as there is no issue of unjust enrichment. I also find that the decision of Hon’ble Supreme Court in the case of M/s Mafatlal Industries Ltd (1996 (12) TMI 50 - SUPREME COURT OF INDIA) as relied upon by learned Authorised Representative has already been considered by the Tribunal in the case of M/s Foods, Fats & Fertilizers Ltd (2010 (6) TMI 344 - CESTAT, BANGALORE ). - mpugned order is not sustainable. - Decided in favour of assessee.
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2015 (4) TMI 119 - SC ORDER
Rejection of declaration under VCES , 2013 - whether an appeal under Section 86 of the Finance Act, 1994 against the order of rejection of declaration under VCES , 2013 filed by the assessee is maintainable - Held that:- Court was under the impression that the appeal filed by the respondent-assessee was pending. In the counter affidavit filed by the respondent, it is brought to the notice of this Court that the appeal had already been decided on 23.12.2013 and that the order had already been accepted and implemented by the Revenue - it is necessary to go into that issue in the case of respondent herein, since in the case of the respondent, the issue has become academic - Appeal disposed of.
This matter was recalled vide order dated 28-4-2016.
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2015 (4) TMI 81 - CESTAT MUMBAI
Commercial or industrial construction services - appellant had constructed High-Tech Textile Park and one Auditorium-cum-Sports Complex - Suppression of facts - Invocation of extended period of limitation - Held that:- Office of the Commissioner of Central Excise and Customs, Aurangabad did not respond to such letter nor any further correspondence was entered with the appellant on this matter. We also note from the records that the service tax returns which needs to be filed by an assessee, in this case the appellant, clearly indicates that the appellant had been keeping the Department informed about the amounts received by them which according to him would fall under the category of exempted services. These service tax returns were accepted by the Department and no question were raised nor any clarification was sought from the appellant. - there was no query from the revenue authorities on the returns which were filed by the appellant. In our considered view, if the revenue authorities were informed about the activities that the appellant is willing to undertake and seeking the clarification whether such activity would fall under the service tax liability or not, and also subsequently indicating in the service tax returns the amounts received by them towards such exempted services, the question of suppressing any material facts from the Department would not arise lead.
If the revenue authorities did not raise any queries when the records were audited, then the show-cause notice issued in October 2013 invoking the extended period for demanding the service tax liability for the period April 2008 to March 2012, is in our considered view blatantly time barred, as it cannot be said that appellant had suppressed any information let alone vital information from the Department with intention to evade tax. In our view the service tax liability confirmed against the appellant is blatantly time barred and the impugned order to that extent is totally incorrect and is liable to be set aside. - Decided in favour of assessee.
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2015 (4) TMI 80 - CESTAT MUMBAI
Telephone services - whether the respondent is required to discharge the service tax liability on the amount which they have received from the distributors and dealers or on the MRP on which the subscribers purchases Recharge Vouchers and SIM Cards from the distributors or dealers - Held that:- According to the amended provisions of Section 67, the value of any taxable service shall be the gross amount charged by the service-provider for such service rendered by him. In instant case, the amount charged by the assessee (service-provider) is the amount received by them from dealers/distributors and nothing extra was charged by the appellants. Admittedly, Service tax was paid on this amount. There are a few elements specified in the Explanation to Section 67, as includible in the value of taxable service. The Revenue has no case that any of these elements is applicable to the appellants. - Decision in case of BPL Mobile Cellular Ltd. [2007 (6) TMI 107 - CESTAT, CHENNAI] followed.
Revenue filed a Civil Appeal before the Hon ble Apex Court and the Hon ble Apex Court dismissed the Civil Appeal after condoning the delay. The said dismissal is reported at [2008 (1) TMI 817 - SUPREME COURT OF INDIA]. As the dismissal of Civil Appeal tantamount to order of Apex Court on the self same issue in favour of the assessee, we have to follow the same; reliance placed by the learned A.R. on the decision of the Apex Court in the case of Idea Mobile Communication Ltd. (2012 (8) TMI 565 - CESTAT, NEW DELHI) may not carry the case of the Revenue any further. - Decided against Revenue.
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2015 (4) TMI 79 - CESTAT MUMBAI
Demand of service tax - manpower recruitment or supply agency service - contract with labour contractors for cutting and transporting sugarcane through labourers from producer/members supplying the sugarcane to the factory. - held that:- Following decision of Amrit Sanjivini Sugarcane Transport Co. Pvt. Ltd. vs. CCE [2013 (8) TMI 58 - CESTAT MUMBAI] - impugned orders are set aside - Decided in favour of assessee.
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2015 (4) TMI 40 - ANDHRA PRADESH HIGH COURT
Maintainability of appeal - Appeal previously dismissed as barred by limitation - Service Tax on the works undertaken by the petitioner - Held that:- Issue is after availing the remedy unsuccessfully before another Court whether we can accept the challenge to the self same order, which has reached its finality under writ jurisdiction or not. According to us, it is not legally permissible, if it is done the writ court will unsettle a legally settled position. We think that when appellate authority has already decided the matter against the petitioner, the writ Court is debarred from doing so and the same binds the writ Court applying the principle of res judicata , particularly, when the appellate authority's orders are not challenged in the writ jurisdiction. - Petition not maintainable.
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