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Service Tax - Case Laws
Showing 101 to 120 of 133 Records
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2015 (6) TMI 306
Classification of service - Manpower supply service or not - Held that:- Appellant have carried out various odd jobs during the period in dispute for Ispat Industries Ltd. like, lining, coating, loading and unloading etc. with the aid of her team (other workers). It is further evident from bill of the job done that the same is definitely not classifiable under manpower recruitment and supply agency service. The payment of Service Tax in such facts and circumstances, show that the appellant have got no concept or knowledge of Service Tax and have deposited the same out of fear with interest much prior to the issue of show-cause notice, i.e almost a year. Further, the Counsel for the appellant makes the concession by stating that in the facts and circumstances, the appellant will not be claiming any refund of amount (tax) and interest already deposited. In this view of the matter, the impugned order is set aside and the appeal stands allowed in favour of the appellant. - Tribunal has only seen the sample bills produced before it. Further, the impugned order is also silent as to the material facts. In this view of the matter, I remand the issue limited to re-calculation of the tax, to the adjudicating authority - Decided in favour of assessee.
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2015 (6) TMI 305
Denial of CENVAT Credit - Board's Circular No.354/148/09 dated 16/7/09 - Held that:- Cenvat credit was sought to be denied by the show cause notice in respect of consultancy services received from foreign service provider's on the ground that the appellant as the service recipient had paid service tax on these services under section 66 A of the Finance Act 1994, while the Cenvat Credit Rules, 2004 do not permit the cenvat credit of service tax paid by a service recipient under section 66 A. - Commissioner has not discussed at all as to how the consultancy services received from foreign service providers are not covered by the definition of 'input service'. In respect of the other services received by the appellant from various domestic service providers he has not discussed at all the Board's Circular No.943/4/2011cited by the Counsel for the appellant on the ground that he could not locate the circular on CBEC Website. He has not even discussed the question of admissibility of cenvat credit in respect of these services on merit. While a responsible Adjudicating Officer while deciding an issue is expected not to blindly rely upon Board's Circular, he is expected to examine the issue independently on merits. We have no hesitation in observing that the order passed by the Commissioner is an irresponsible order which is not expected from a senior officer of the rank of Commissioner. The impugned order is set aside. The matter is remanded to the Commissioner for de-novo adjudication. - Decided in favour of assessee.
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2015 (6) TMI 271
Demand of Cenvat Credit - Business Auxiliary Services - Trading activity - Held that:- The appellant is not an output service provider in respect of trading. - Mercedes Benz judgment [2014 (4) TMI 12 - CESTAT MUMBAI] also held that the formula introduced in Rule 6 in 2011 cannot be applied retrospectively. Following this judgment, I hold that the amount of credit to be disallowed was correctly computed by the adjudicating authority. The reliance by the learned Counsel on the case of Sai Sathya Said Inst. (2003 (9) TMI 94 - SUPREME COURT OF INDIA) is inappropriate. The department is not imposing a condition which is not in the Rules. Department is merely saying that input credit is available under Service Tax law for providing output services in terms of the definition of input service in the Cenvat Credit Rules whereas the trading activity is outside the purview of service tax law.
Bar of limitation - appellant have not declared in their ST-3 returns that the input service credit was used in relation to trading. This amounts to suppression of facts. Therefore, the extended period of limitation is correctly invoked as the appellants are following self assessment procedure and taking credit on their own against the provisions of law. Therefore, the present case is distinguishable from the case of Landis +GYR Ltd. Reliance is placed on the case of Mercedes Benz (supra) as that judgment involved the same circumstances as far as the issue of time bar is concerned.
Reducing penalty to 50% of amount confirmed under proviso to Section 78(1) is bad in law because the proviso became effective from 08/04/2011 whereas the period in the present case is from 2006-2007 to 2010-2011. I am also inclined to agree with the learned AR that the department was not put to notice on application of Rule 6(3A) by the Commissioner (Appeals) when the show-cause notice did not state this. I find that principles of natural justice have been violated. However, I have already decided the issue on merits in favour of Revenue. In view of applicability of extended time period for suppression of facts, I uphold the penalty equivalent to amount of Cenvat Credit demanded as held by the adjudicating authority. - Decided against assessee.
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2015 (6) TMI 270
Denial of refund claim - No unutilized CENVAT Credit - Export of software - STPI unit - Held that:- Refund is to be granted on the basis of the cenvat credit available in the Cenvat Credit Account and not on the basis of the closing balance of Cenvat credit shown in ST-3 Return. - even after adjusting the amount of refund of ₹ 56,58,994/- towards the cenvat credit amount of ₹ 68,27,559/-summarily held to be inadmissible, no action has been initiated for recovering the remaining amount of ₹ 11,68,565/-as noted earlier. - total amount of ₹ 56,58,994/- (rupees fifty six lacs fifty eight thousand nine hundred ninety four only) is the amount of refund of untilised CENVAT Credit admissible to M/s Serco Global Services Private Limited for the quarters April 2008 to June 2008, October 2008 to December 2008 & January 2009 to March 2009. However, an amount of ₹ 68,27,559/- which has been wrongly added by them to their Cenvat credit account is ordered to be deducted so as to correctly reflect the CENVAT availed utilized and carried forward in subsequent returns.
Adjudicating authority has come to a clear finding that for the quarters October 2008 to December 2008 and January 2009 to March 2009, ₹ 56,58,994/- is the amount of refund of unitilised Cenvat credit admissible to the appellant. As regard the refund for the quarter April 2008 to June 2008, in view of the fact that Cenvat credit account had balance and a revised ST-3 return was also submitted (although as stated earlier, mere mistake in ST-3 return does not disentitle the appellant for refund) the amount of refund is required to be recomputed in the light of the fact that credit taken before 16.5.2008 is to be disallowed and therefore, the question of refund of the same (i.e. of the credit taken prior to 16.5.2008) would not arise. - matter remanded back - Decided in favour of assessee.
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2015 (6) TMI 269
Penalty under Sections 76, 77 and 78 - before issue of show-cause notice, the entire amount of tax was paid and before issue of adjudication order, interest was also paid - Held that:- appellant was not aware of the provisions of law and as a result, continued to operate as they were operating earlier. The fact is that both the Revenue as well as the assessee are relying upon the balance sheet and the Profit & Loss Account for arriving at the quantum of service charges received and no other documents are admittedly available either with the assessee or with the Department. There is no dispute about the total liability or the total service amount received. The Accountant also promptly stated that they have made a mistake and they would pay the tax and interest. The intention behind introduction of provisions of Section 80 is precisely to ensure that assessees who did not pay the tax can make the payment with interest and lenient view can be taken as regards penalty in cases where there is lack of knowledge and reasonable cause. The very fact that the section continues to be in existence for a long time shows that the intention of the Government is to provide relief where there is a reasonable cause for failure to make payment and Hon'ble High Court of Allahabad in the case of CCE Vs. Muniruddin [2013 (10) TMI 95 - ALLAHABAD HIGH COURT] has taken a view that even ignorance of law can be one of the reasons, though cannot be sole ground for invoking Section 80. - appellant has made out a case for waiver of penalty by invoking Section 80 of Finance Act. Accordingly, penalties imposed under various sections of Finance Act, 1994 are waived - Decided in favour of assessee.
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2015 (6) TMI 268
Refund claim - Banking and other Financial Services - Partial sanction of rebate claim - Refund filed prior to date of raising invoice - Held that:- Invoice which has been raised by the appellant on 30/06/2012 clearly indicates that the said invoice is for the services rendered by them to an entity situated in Mauritius. It is undisputed that the said services are exported and the appellant is eligible for the refund of the amount of service tax paid by them by debiting the amount in CENVAT credit account. It is noticed by us that the appellant had debited the CENVAT Credit register on 29/06/2012 indicating therein that the CENVAT credit is utilised for payment of service tax on services exported to Bain Capital Mauritius. In our considered view, when the facts are very clear and when there is export of services and the amounts have been debited in CENVAT credit register; there was no reason for the lower authorities to reject such a valid rebate claim.
Only reason given by the first appellate authority for rejecting this claim was that it was filed on 29/06/2012, whereas the invoice was raised on 30/06/2012 and cannot be correlated. Invoice can be raised on any date but the debit of the amount towards service tax liability was on the date when the rebate claims were filed. On a specific query from the bench, as to the certificate of foreign inward remittance not tallying with the amount indicated in the ST-3 returns, the learned counsel would submit that he would file the invoices and the correct reconciliation. It was filed by the appellant on 16/01/2015. On perusal of the said reconciliation and the documents like FIRCs and the invoices raised by the appellant, we find that the entire amount, which has been billed by the appellant to Bain Capital Mauritius, has been received by them through banking channel. - Rejection of the rebate claim of the amount debited by the appellant in CENVAT credit register for the export of services is incorrect. The order to that extent is liable to be set aside and the rebate claims filed by the appellant needs to be allowed - Decided in favour of assessee.
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2015 (6) TMI 231
Penalty u/s 78 - Goods Transport Agency service - service tax was not being paid by them on account of financial problems and non-availability of sufficient funds - Held that:- Non-payment of duty on account of financial difficulties without intimating the Revenue, especially when the appellant was registered with the department and was aware of its legal obligations, reflected upon malafides of the appellant. The amount of service tax required to be paid for the period of three years was also not on the higher side and as such, the appellant's contention that the same was not paid on account of financial difficulties, can not be appreciated. Further, the appellants have admitted their tax liability and have paid the same for the longer period of limitation. As such, the invocation of longer period itself suggests that there was suppression or misstatement on the part of the assessee for nonpayment of the tax, in which case penal provisions would get attracted. - as the appellants have already deposited the service tax along with interest before the issue of show-cause notice, the penalty imposed under the provisions of Section 78 is required to be brought down to 25% of the tax amount - penalty in terms of Section 78 is set aside - Decided partly in favour of assessee.
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2015 (6) TMI 230
Demand of service tax - GTA Service - Held that:- Goods were transported by the respondents in their own truck and in another truck, which was taken on hire by them on per day basis and for which the fuel and other expenses were borne by the respondents. Thus it is evident that they were transporting their own goods and were not engaging any goods transport agency. - respondents did not "receive" the goods from any person as the goods transported were their own goods. Further "Goods Transport Agency" as per definition in Section (50B) of Finance Act, 1994 means any person who (prior to 01.05.2006 commercial concern which) provides service in relation to transport of goods by road and issues consignment notes by whatever name called. - respondents were transporting their own goods and it can be nobodys case that even providing service to oneself is taxable. CESTAT in the case of Kesoram Spun Pipes p& Foundaries (2002 (5) TMI 3 - CEGAT, KOLKATA) observed that in the present case, the appellants have received goods directly from the suppliers of the Coke, who have themselves undertaken the deliveries of the goods at the appellants door-steps, it cannot be said that the appellants received the services of any commercial agency. - No merit in Revenue appeal - Decided against Revenue.
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2015 (6) TMI 229
Waiver of pre deposit - Works Contract Service - Held that:- Services provided to various customers which are in the nature of laying of pipelines for water supply may not be leviable to service tax under ‘works contract service' in view of the fact that in this case, water supply was made by the Government or Municipality to the citizens and therefore, it cannot be said on prima facie basis that ‘works contract' was in relation to commercial or industrial purpose. Therefore, substantial portion of demand gets excluded for the purpose of requirement of pre-deposit. It is also seen that another demand of more than 52 lakhs is for laying of pipelines and construction of the same for SEZ and prima facie , the appellant has made out a case. - Stay granted.
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2015 (6) TMI 197
Demand of service tax on the job work converting black bars into bright bars for various clients for which they receive processing charges - Business Auxiliary Service - Held that:- Revenue has not disputed the fact of discharge of excise duty on the very same item manufactured and cleared by the appellant on their account. It is surprising to note that the first appellate authority has not considered this vital submission of the appellant as to when the same goods are manufactured by the same process, how the said process cannot become manufactured out of job working. In our considered view, the self same activity of conversion of black bars into bright bars on their account and clearance of the same on discharging duty as manufactured product cannot become a non-manufactured product when the appellant undertakes jobworking for some other clients. - On bare perusal of the reply to the show-cause notice indicate that there was no response from the department on this query raised by the appellant. The show-cause notice issued in this case is on 13.10.2008 for the period 10.09.2004 to 28.02.2005 which in our view is blatantly time barred and cannot invoke suppression against the appellant. - Decided in favour of assessee.
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2015 (6) TMI 196
Demand of the service tax - club or Association services - Held that:- High Court of Gujarat in the case of Sports Club of India Special [2013 (7) TMI 510 - GUJARAT HIGH COURT] wherein their Lordships have struck down the provisions of section 65(25A), section 65(105)(zzze) of the Finance Act, 1994 in respect of the leviability of service tax by the club on its members. This ratio has been followed by the Tribunal in the case of Matunga Gymkhana in [2015 (1) TMI 1146 - CESTAT MUMBAI]. The ratio of the decisions will squarely apply in this case and in the favour of the appellant. - decided in favour of assessee.
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2015 (6) TMI 195
Denial of CENVAT Credit - Commissioner allowed credit claim - Held that:- When appellant was an exporter and the Cenvat credit it had earned was not possible to be utilized by it, there was no bar to grant the refund thereof to the appellant, which was found to be genuine claim in the absence of any evidence suggesting that the appellant has erroneously earned the credit. Therefore, there is no scope to presume that the Cenvat credit is inadmissible. - Decided against Revenue.
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2015 (6) TMI 194
Denial of CENVAT Credit - Nexus with manufacturing activity - Whether the appellants have satisfied the definition of input service for availing the CENVAT credit and whether the demand is barred by limitation - Held that:- issue involved was eligibility of CENVAT credit on services received in respect of security services etc. provided to the residential colony and not to the factory or the premises of the appellant. In this case, the services are clearly covered by inclusive part of the definition which covers financing as one of the headings under which services are eligible. As already observed by me, the services received were received for mobilization of finance by IPO and for conducting study of the business plan and study done in relation to anti-collusion devices proposed to be manufactured by the appellants. All these activities, in my opinion, are clearly covered by the inclusive part of the definition. - appellant is eligible for the benefit of refund of CENVAT credit taken by them and therefore the impugned order has no merits and has to be set aside. Accordingly, the impugned order is set aside - Decided in favour of assessee.
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2015 (6) TMI 162
Waiver of pre deposit - Mandatory pre deposit - whether the petitioner would have to deposit the amount of 7.5% of the tax confirmed against him, as a condition for pursuing the appellate remedy before the Tribunal - Held that:- Petitioner, in whose case also the lis commenced in 2013, would not be required to deposit the amount of 7.5%, as required pursuant to the 2014 amendment, and in that respect, he would have an efficacious alternate remedy before the Tribunal where he can file an appeal, together with an application for waiver of pre-deposit and stay of recovery of the amounts confirmed against him by Ext.P1 order. At the time of filing the appeal, he will not be required to make any payment as a pre-condition for the hearing of the waiver application by the Tribunal. I, therefore, relegate the petitioner to the alternate remedy available under the Finance Act, 1994, as amended, of approaching the Appellate Tribunal by way of an appeal against Ext.P1 order. It is made clear that the appeal to be filed by the petitioner would be governed by the statutory provisions, as they stood prior to the amendment introduced with effect from 16.08.2014. - Decided against assessee.
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2015 (6) TMI 161
Classification of service - appellants have website where a number of photographs are available for a viewer to see and choose from the same after browsing - whether the services rendered by the appellant would fall under the category of 'Online information and Data base access or Retrieval service' under Section 65 (75)(zh) or otherwise - held that:- on-line information means providing data or information which is retrieved or otherwise in electronic form through a computer network. It is an admitted fact in the case in hand, that the appellant's client has an access to the image or photograph, which he want to download for the purposes either to place an ad or for research can be done so only through the computer network. Further, we find that the appellant's website allows the access and retrieve the data or information contained therein which are free for the purpose of viewing on the monitor, but has to be paid for downloading in the for further commercial use. - database or the information which is accessed need not be only photograph, it can be strategic, legal and having data wherein graphics are displayed, books and other electronic publications etc. The service as rendered by the appellant would be web-based service providing access or downloading of a digital content inasmuch as the images and photographs are nothing but a digital content stored in website. - impugned order of the first appellate authority is correct and does not require any interference - Decided against assessee.
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2015 (6) TMI 160
Imposition of penalty - Installation commissioning and testing service - Revenue classified service as repair service - Held that:- service has been wrongly classified. An amount of ₹ 4,50,504/- was received by the appellant for painting of 220 M.S. towers. The paint was purchased by the appellant and therefore, the contract has to be treated as works contract and the period involved is 16.06.2005 to 31.03.2006. It was submitted that the cost of the raw materials is ₹ 1,80,201/- and this service cannot be considered as repair service. Even though this claim is not acceptable, this service of painting of MS towers was undertaken for AP Transco which is engaged in transmission of power. The services provided for the purpose of transmission of electricity have been exempted retrospectively under Notification No. 45/2010 and therefore the service tax itself is not leviable. - substantial portion of the amount is not liable to tax at all and the amount paid by the appellant covers the entire demand, interest and a portion of the penalty also. Therefore this is a fit case for waiving the balance amount of penalties if any payable by the assessee by invoking the provisions of Section 80 of the Finance Act 1984 - Decided in favour of assessee.
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2015 (6) TMI 126
Denial of CENVAT Credit - Whether the appellant would be eligible for Cenvat credit of Service Tax paid on the GTA service availed for transportation of the biscuits from their factory to the depot of M/s. Parle Biscuits - Held that:- In view of the Tribunal’s judgment in the case of Ultratech Cement Ltd. v. CCE, Chandigarh/Raipur (2014 (3) TMI 159 - CESTAT NEW DELHI), since in this case the assessable value of the goods was being determined not under Section 4 but under Section 4A of the Central Excise Act, 1944, the definition of “place of removal” as given in Section 4(3)(c) cannot be adopted for the purpose of Cenvat Credit Rules, 2004 and accordingly it is the factory gate which would be the place of removal. Moreover, even if the definition of “place of removal” as given in Section 4(3)(c) is treated as applicable to the cases where the duty on the finished goods is payable on the value determined under Section 4A, even then, the depot of M/s. Parle Biscuits cannot be treated as “place of removal” in respect of the goods manufactured by the appellant as the, “place of removal” defined in Section 4(3)(c) is the place of removal for the manufacturer of the goods and in case, the manufacturer after clearing the goods from the factory to his depots [clears] all the goods from those depots, it is those depots which would be the place of removal. However, when the manufacturer clears the goods to the depots of some other persons, those depots cannot be treated as “place of removal” for the manufacturer, unless the sales are on FOR destination basis.
“Place of removal” in this case is factory gate of the appellant, and not the depot of M/s. Parle Biscuits. In view of this, we hold that the Cenvat credit of the service tax paid on the GTA services availed for transportation of goods from the factory of the appellant to the depot of M/s. Parle Biscuits has been correctly denied - Cenvat credit demand has been correctly upheld along with interest. - Decided against assessee.
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2015 (6) TMI 125
Denial of CENVAT Credit - credit of service tax paid on freight in respect of transportation of their final product from factory to buyer's premises - High Court dismissed the appeal filed by the assessee against the order of Tribunal [2007 (7) TMI 19 - CESTAT, CHENNAI] since there is no representation on behalf of Assessee. So appeal is dismissed for non prosecution.
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2015 (6) TMI 122
Denial of refund claim - Export of services or not - providing advisory services to M/s. AMP Capital (Australia) - Held that:- Services were carried out in India but the recipient is outside India and, therefore, the services provided by Indian entity deemed to be used by the person located outside India and, therefore, it satisfies the terms used "outside India" provided under the Export of Service Rules. Therefore, following the ratio of the above judgments it is absolutely undisputed that the appellant has provided the services from India and the same was used outside India. Accordingly it qualifies as 'export of services' and refund is admissible. - appellant is rightly entitled for the refund holding that the services provided by the appellant is export of services. Hence the impugned orders are not sustainable and the same is set aside. - Decided in favour of assessee.
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2015 (6) TMI 121
Clearing and forwarding agency service - delcredere agent - Held that:- The appellant is found to be a delcredere agent who in the commercial world guarantees recovery of the debt. Even reading of the scope of the activities carried out by appellant as depicted in the appellate order does not appeal to common sense that the appellant carried out clearing and forwarding service when Department has not brought out which are the consignments he cleared and origin and destination of the goods for forwarding. - Decided in favour of assessee.
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