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Service Tax - Case Laws
Showing 121 to 133 of 133 Records
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2015 (6) TMI 120
Rejection of the refund claim - service tax was paid under protest - Bar of limitation - Held that:- adjudicating authority has held that no service tax is payable for the period prior to 18.04.2006. It clearly evident from the above order that the appellants have paid the service tax amount of ₹ 18,24,156/- under protest on 14.08.2008. When the demand was dropped for the period prior to 18.04.2008, they are eligible for the consequential refund and they have rightly filed the refund claim on 05.12.2011, which is well within the time limit of one year from the date of order. Hence, the appellants are rightly entitled for the refund as the service tax was paid under protest and no time limit applies. - appellate authority has gone beyond the adjudication order and the show cause notice and taken relevant date as the date of re-submission of the refund claim and the appellate order is beyond the scope of adjudication order. - it is established from the records that the appellants have paid the service tax under protest, the question of time bar does not arise - Decided in favour of assessee.
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2015 (6) TMI 119
Waiver of pre deposit - Activity of providing accommodation on the basis of holiday voucher issued by their corporate clients - Business Auxiliary service - Held that:- The applicant is engaged in the activity of providing accommodation on the basis of holiday voucher issued by their corporate clients by arranging of accommodation on the direction of their clients to the customers who win the vouchers. Admittedly, all these activities has been provided by the applicant after sale is effected by their clients. When sale has been effected by their client, therefore, the question of promotion their business does not arise. In these circumstances, prima facie we are of the view that the activity undertaken by the applicant does not qualify under the category of Business Auxiliary Service - All the activities referred by the Hon'ble High Court [2013 (1) TMI 304 - GUJARAT HIGH COURT ] with regard the promotion of sale but here the applicant is providing all services after effecting the sale. Therefore, the said case law is not relevant to the facts of this case. In these circumstances, the applicant has made out a prima facie case of complete waiver of pre-deposit of service tax, interest and penalties, therefore, we waive the requirement of pre-deposit of entire amount of service tax, interest and penalty and stay recovery thereof, during pendency of the appeal. - Stay granted.
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2015 (6) TMI 85
Default in payment of service tax - punishable office u/s 89 & 90 - Arrest under Section 91 - Interim bail - punishment under the provisions of Section 89(1)(i) (ii) - Held that:- The statements of various persons had been recorded and on the strength of the same, the show cause notice was issued subsequently, after arrest which is yet to be adjudicated upon. The hurry to arrest, in such circumstances prima-facie amounts to a punitive measure, prejudging the issue.
It is also admitted by counsel for respondent No.2 that after the arrest of the petitioner on 08.04.2015, the judicial remand had been ordered on 09.04.2015 and no effort, thereafter, has been made to seek any further information from the petitioner which goes contrary to the argument that investigation is in progress and his personal custody is required. Once such was the situation, the requirement of arrest for the arrears due for the last more than 4 years, of which, there was no quantification, prima facie, in our opinion, would only infringe on the fundamental rights of the petitioner, as the calculations on the basis of which, he is sought to be arrested, as per the arrest memo, was issued only at his back and without having given him appropriate opportunity to file reply to the show cause notice, which admittedly was issued on 23.04.2015, post his arrest.
Even after seeking instructions, counsels for the respondents could not confirm as to when the said process will be completed so that this Court prima facie could go into the question as to whether the offence has been made out or not which is, now, sought to be contended on the basis of alleged admissions made by the petitioner with the respondent-authorities.
Further detention of the petitioner, in such facts and circumstances, amounts to taking away his liberty in the absence of any complaint having been filed against him and it would be a fit case where the extraordinary jurisdiction of this Court under Article 226 of the Constitution of India is liable to be exercised. The interest of the Revenue can be safeguarded by imposing certain conditions which the petitioner will adhere to. - petitioner is granted interim bail subject to the satisfaction of the Chief Judicial Magistrate/Illaqa Magistrate, Rohtak, on the certain conditions - Interim bail granted subject to conditions.
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2015 (6) TMI 84
Waiver of pre deposit - renting of immoveable property service - Held that:- Renting of immoveable property had been brought in to the service net w.e.f. 01.06.2007 vide notification dated 22.05.2007. The explanation to Section 65(90a) of the Finance Act provide that renting of immoveable property includes use of immoveable property, factories, office buildings, warehouses plus for use in the course or furtherance of business or commerce. Sub-section (105)(zzzz) also provides that taxable service means providing of any service by renting of immoveable property The argument that as per the amended lease deed dated 29.03.2011, the building was only let out for ₹ 55,000/- per month and the rest of the amount was only on account of the rent of the immoveable plant and machinery, which was moveable and not covered under the Act, prima facie, cannot be accepted. The Adjudicating Authority has noticed that a consolidated ledger account is being maintained and that there is no breakup for the different heads of land and building and the plant machinery and the agreement dated 29.03.2011 was not registered under the Registration Act, 1908.
Court is not inclined to interfere with the discretion which has been exercised and where the benefit of pre-deposit has been restricted to a reasonable amount, in favour of the appellant. However, since an interim order had been passed in favour of the appellant on 24.12.2014 that the appellant would deposit a sum of ₹ 8 lacs towards service tax, which is stated to have been deposited, liberty is granted to the appellant to deposit the balance outstanding amount within a period of 2 months, from the date of this order. - Decided partly in favour of assessee.
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2015 (6) TMI 83
Reverse charge mechanism - Section 73 - Levy of tax on GTO service - Held that:- even the amended Section 73 takes in only the case of assesses who are liable to file return under Section 70. Admittedly, the liability to file return is cast on the appellants only under Section 71A. The class of persons who come under Section 71A is not brought under the net of Section 73. The above being the position show cause notices issued to the appellants invoking section 73 are not maintainable - Decision in the case of L.H. Sugar Factories Ltd. [2005 (7) TMI 106 - SUPREME COURT OF INDIA] followed - Decided against Revenue.
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2015 (6) TMI 82
CENVAT Credit - input services - activities in relation to business - whether the respondent was entitled to credit on management, maintenance or repair services provided on windmills installed by the respondents - Held that:- management, maintenance and repair of windmills installed by the respondents is input service as defined by clause "l" of Rule 2. Rule 3 and 4 provide that any input or capital goods received in the factory or any input service received by manufacture of final product would be susceptible to CENVAT credit. Rule does not say that input service received by a manufacturer must be received at the factory premises. - Decision in the case of Commissioner of Central Excise Versus Ultratech Cement Ltd. [2010 (9) TMI 19 - High Court of Bombay] and [2010 (10) TMI 13 - BOMBAY HIGH COURT] followed - Decided against Revenue.
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2015 (6) TMI 79
CENVAT Credit - Trading activity - Revenue is of the view that the appellant is not eligible for credit of input services in proportion to the turnover of trading activities and that of manufacturing activities - Invocation of extended period of limitation - Held that:- Eligibility of credit is defined in Rule 3 read with definition in Rule 2(l). It is only after that various questions in Rule 6, come into play. Rule 6(5) cannot be read in isolation but has to be read in the overall scheme of the things. - t trading was not a service and therefore, cannot be considered as an exempted service during the period prior to 1.4.2011 and the amended provision with effect from 1.4.2011 will not have retrospective effect
Quantification of credit to reversed towards trading activity - period prior to 1.4.2011 - Held that:- the credit of tax paid on such sales promotion activities should be apportioned with reference to the turnover of the manufactured cars and turnover of the traded cars. For example, if the turnover in particular period is say ₹ 1000 crore out of which turnover of ₹ 700 is pertaining to the indigenous cars and turnover of ₹ 300 crores pertains to the imported and traded cars then if the input credit of 10 crores is available then 7 crore should be considered for the manufactured cars in India and credit of ₹ 3 crore should be considered pertaining to imported and traded cars.
Credit of input or input services is allowed only in order to eliminate the cascading effect of taxes. Thus, for taking credit, the trading activity should be taxable under Service Tax or Excise Law. The credit of input or input services is not allowed in respect of non-taxable activities. Here is a case where the services were used for trading activity. The appellant should have not taken the credit in the first instance itself, which was totally wrong on their part. They did not indicate in the returns that the credit relating to the trading activities was also being availed by them. Therefore, this is a clear case of suppression, and conduct of the appellant in this regard does not take him further and the extended period of limitation has been rightly invoked.
No hesitation whatsoever in holding that taking credit in respect of services used in trading activity cannot be considered as bona fide at all. Just because the Government has put a trust in the trade and permitted them to take credit without any reference to tax authorities, it does not imply that the appellant can avail any credit whether permissible or not under the law and the later on, take the plea that the same is not recoverable on the grounds that the issue involves interpretation and hence the extended period of limitation cannot be applied.
Undoubtedly, the returns filed by the appellant as ISD were not in accordance with law. The declaration made in the ST-3 returns was not correct. Hence the penalty imposed is upheld. - letter contains more than what was submitted during the course of hearing as also in the grounds of appeal filed before this Tribunal. As per Rule 10 of the CESTAT (Procedure) Rules, 1982, the appellant shall, except by the leave of the Tribunal, urge or be heard in support of any grounds not set forth in the memorandum of appeal. The procedure being followed by the learned counsel for the appellant is totally incorrect and we, therefore, refuse to discuss the submissions made in the said letter (even though we have gone through the said letter and find that the submissions made are devoid of even any consideration). - Decided against assessee.
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2015 (6) TMI 50
Tour Operator/ Rent-a-Cab Services - Bonafide beleif - Invocation of extended period of limitation - Penalty u/s 76, 77 & 78 - Held that:- Revenue came to know of the services provided by the appellant only through an audit of the records of M/s. ONGC. No service tax registration was obtained by the appellant during the relevant period of demand - extended period will be applicable to the present facts and circumstances.
Providers of Rent-a-Cab/ Tour Operator services providers were under the impression that services provided to M/s. ONGC are not leviable to service tax. M/s. ONGC also conveyed to Rent-a-Cab service providers that service tax is not leviable as observed by this bench while passing order No. A/12094 to 12096/2014 dated 28.11.2014. This case is, therefore, fit for extending the benefit of Section 80 of the Finance Act, 1994 even if extended period is found applicable - Decided partly in favour of assessee.
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2015 (6) TMI 49
Waiver of pre deposit - business auxiliary service - distributor or marketing agent of M/s Amway India Enterprises Pvt. Ltd. - Held that:- While prima facie the service rendered by the appellant clearly fell under the scope of business auxiliary service, it is seen that CBEC vide Circular No. 80/10/2004-ST dated 17.9.2004 stated that while the scope of the existing taxable service (viz. business auxiliary service) has been expanded to include activities relating to procurement of inputs, production of goods (not amounting to manufacture), provisions of services on behalf of a client, the tax is leviable only when the service provider is a commercial concern. - circular further clarify that "service tax is however being restricted to only those cases where the service provider is a factory governed by the Factory Act, 1948, the company established by or under the Companies Act, 1956 or corporation or a body corporate established by or under any law, partnership firm, societies registered under Societies Registration Act, 1860 or under any law and any cooperative society established by or under any law - appellant had a reasonable basis to presume that they being an individual would not be covered for the purpose of levy of service tax. We must clarify that Board's circulars do not have any legal enforceability and are mere administrative interpretations of law but when the policy making body [CBEC] itself considered individuals to be outside the purview of taxability under business auxiliary service, it cannot be sustainably alleged that an individual was guilty of suppression/mis-statement if he thought alike. Thus, prima facie, the entire demand is hit by time bar. - Stay granted.
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2015 (6) TMI 20
Demand of service tax - Cargo Handling Services - Held that:- Mined coal at pit-heads required to be transported to stockyards or crushing sites from the mine area can be certainly considered as cargo. Therefore, the activity undertaken by the appellant clearly falls within the definition of "Cargo Handling Service" as defined in law. - The Hon'ble High Court of Orissa in the case of Coal Carriers (2011 (2) TMI 1140 - ORISSA HIGH COURT) held that loading of coal into the railway wagons would fall within the definition of "Cargo Handling Service". The Hon'ble High Court also observed that as per the dictionary meaning the goods which are being carried or transported by any means of transportation and has become load of the trucks would also come within the meaning of "cargo" and therefore, the activity was squarely covered by "Cargo Handling Service" as defined in law. In this view of the matter, we are of the view that the activity undertaken by the appellant squarely falls within the scope of "Cargo Handling Service" as defined in law. - same relates to mining of sand from the riverbed and transporting the same to the Western Coalfield's mining area. Sand is a minor mineral and therefore, mining of sand from riverbed comes within the definition of mining service and will not come within the scope of "Cargo Handing Service" as the main activities is of mining and therefore, demand of Service Tax on mining of sand is not sustainable in law.
Activity of loading/unloading of coal by engaging tippers would come within the purview of the "Cargo Handling Service" and the appellant would be liable to discharge Service Tax liability accordingly. As regards the mining of sand from the riverbed the said activity would come within the scope of mining service and not under "Cargo Handling Service". Since there was a confusion about the scope of levy, the extended period of time is not invocable in the present case and accordingly, the demand should be restricted to the normal period of limitation. The appellant would be liable to pay interest on the Service Tax demand payable for the normal period of limitation. Since the dispute relates to the classification of service, imposition of penalties are not warranted. Therefore, the matter is remanded to the adjudicating authority only for the limited purpose of quantification of the Service Tax demand for the normal period of limitation and for excluding the sand mining activity undertaken from the scope of Cargo Handling Service. - Decided partly in favour of assessee.
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2015 (6) TMI 19
CENVAT Credit - air travel, travel insurance, vehicle insurance, vehicle maintenance, mediclaim for employees and CHA services - Held that:- Record does not reveal connection of air travel to the service provided nor the travel insurance. So also the vehicle insurance does not exhibit whether that is in any way relate to output service provided. Revenue succeeds on all these three counts. But mediclaim for employees is integrally connected to secure their services to render provision of output service. Thus, Cenvat credit in respect of such services availed is permissible. - As regards CHA, computers imported warranted availing of services of that agent. The computer so imported being used for provision of output service, there should not be denial of Cenvat credit of service tax paid thereon - Decided partly in favour of Revenue.
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2015 (6) TMI 18
Business Auxiliary Service - Invocation of extended period of limitation - Activity of Handling of finished goods - Held that:- Prima-facie, we find that on more or less similar activities, the Applicant had challenged the earlier Work Order before the Hon'ble Gauhati High Court, which was quashed on the ground of limitation. No-doubt, the earlier service tax demand was issued under the category of "Cargo Handling Services", but prima-facie, we find that the activities, which the Applicant rendered under both these Work Orders, are more or less similar in nature. Therefore, prima facie, at this stage, it would be difficult to accept the contention of the Revenue that subsequent show-cause notice issued on 17.04.2012 invoking extended period of limitation would sustain, when the earlier show-cause notice, was quashed on the ground of limitation by the Hon'ble High Court. In the result, the Applicant could able to make out a prima-facie case for requirement of predeposit of all dues adjudged is waived and its recovery is stayed during pendency of appeal - Stay granted.
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2015 (6) TMI 17
Waiver of pre deposit - Management, Maintenance & Repair service - whether the work of draining/replacement of damaged fencing and providing cement concrete pavement along side State Highways would be covered under the scope of management and repair of roads - Held that:- Work order was obtained from PWD, Bikaner and the work was along the state highways. Thus, it is quite arguable that the drainage/fencing and pavements form part of the road as the interpretation of word "road" can be confined only to the part which vehicles ply to the exclusion of pavement and fencing on the sides. In case of Himalaya Plantations Vs. CCE, Nagpur [2014 (5) TMI 577 - CESTAT MUMBAI], the Tribunal observed that it appears that the services in relation to maintenance of road divider is covered under section 97 of the Finance Act, 1994. In view of the foregoing, we are of the view that the appellant have made out a good case for full waiver of pre-deposit and we order accordingly and stay the recovery of the impugned liabilities during the pendency of appeal - Stay granted.
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