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Service Tax - Case Laws
Showing 101 to 120 of 145 Records
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2016 (1) TMI 481 - KARNATAKA HIGH COURT
Cenvat Credit - duty paying documents - invoices which did not bear Sl.No. and registration number etc. - service tax paid on input services e.g. (i) repair charges; (ii) repair of company vehicles; (iii) rent a cab services used for transportation of staff/guests - Held that:- under the Scheme of Cenvat Credit Rules, 2004, the assessee is entitled to claim the credit on the service tax paid on all those services which the assessee has utilized directly or indirectly in relation to a final product involved in the manufacturing activity.
The service tax paid for services of repair, maintenance of company vehicles/rent-a-cab services are in relation to the business activities of the company, which is directly or indirectly involved in the manufacturing activity of the final product, is an input service. As such, the CENVAT credit claimed on these two services namely, service tax paid for repair on Company vehicles and, rent-a-cab services would come within the realm of Rule 3 of Cenvat Credit Rules, 2004 read with Section 66 of the Finance Act, 1994 and thus, the assessee is entitled for the Cenvat credit of service tax paid on the input services.
Credit allowed - Decided in favor of assessee.
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2016 (1) TMI 480 - CESTAT MUMBAI
Levy of penalty - first appellate authority has reduced the penalty imposed under Section 78 to 25% of the tax liability and also set aside the penalty imposed under Section 76 for the period September 2007 to 9th May 2008 relying upon the provisions of Section 78 of the Finance Act, 1994 - Held that:- it is settled that the judgement on a particular issue which passed by a Jurisdictional High Court, judicial discipline needs to be followed in preference to any other judgements. In view of this, I find that the impugned order which extended the benefit of 25% of payment of penalty to the respondent is incorrect and liable to be set aside and I do so.
As regards the simultaneous penalties imposed under Section 76 and 78 for the period September 2007 to 9th May 2008, I find that the respondent is required to discharge the penalty under Section 76 and 78 of the Finance Act, 1994 as per the judgement of the Apex Court in the case of Board of Control for Cricket in India [2015 (1) TMI 856 - SUPREME COURT].
Decided in favor of revenue.
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2016 (1) TMI 442 - CESTAT MUMBAI
Levy of service tax on the royalty under reverse charge mechanism - Intellectual Property Service - scope of the work "namely" - The appellant demonstrates and imparts training to the customers who use their software for their own use under specific lock code system. The master key of the locking code system is entirely in the possession of M/s.Fluent Inc.; they are the owners of the said mater key. - Held that:- the appellant are a wholly owned subsidiary of Fluent Inc. USA. It can hardly be expected that a company will transfer its intellectual property right to its wholly owned subsidiary.
Specific clauses of the Agreement clearly show that the appellant cannot disclose transfer or otherwise make available any software products or copies thereof to others. The appellant is only authorised to retain the trade mark of Fluent Inc which are provided by the latter. Fluent Inc. products sold by the appellant can bear the markings of Fluent Inc. The appellant is merely distributing, marketing and supporting set of computer programme known as FI software. There is absolutely no indication of any transfer of intellectual property right on a plain reading of the Agreement. Neither do we find any hidden or deeper meaning in the Agreement which would indicate transfer of intellectual property right.
Demand of service tax is set aside - Decided in favor assessee.
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2016 (1) TMI 441 - CESTAT NEW DELHI
Supply of Tangible goods service - receipt of facility charges - control over the tanks - appellant has installed storage tanks/Evaporator at the customer's premises for supply of gases and have collected facility charges from the customers during the period 1.6.2009 to 1.8.2009. - Held that:- appellant has not made out a case for full waiver of Pre-deposit. - pre-deposit of 20% of the demand of service tax would be sufficient for compliance of Section 35F of Central Excise Act, 1944 - stay granted partly.
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2016 (1) TMI 440 - CESTAT ALLAHABAD
Levy of penalty u/s 77(1)(c) for failure to furnish the records before the Audit Party - appellant urges that the letter dated 6/2/12 is vague as it does not state which particular document is required - Held that:- although there was some confusion as the document desired was "financial statement/documents", not specifying the particular document, the same led to confusion with the appellant in making timely compliance - there is some element of negligence on the part of the appellant also. - the bone of contention, that is applicability of notification number 12/2003 has been decided in favour of the appellant by the Commissioner (Appeals).
The appellant have already deposited penalty of ₹ 10,000/- imposed on the director and not appealed further. It is an admitted fact that the documents required were ultimately filed at the time of personal hearing of the show cause notice - taking a liberal view, penalty set aside. - Decided in favor of appellant.
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2016 (1) TMI 439 - CESTAT AHMEDABAD
Refund claim - service tax was paid under reverse change mechanism - Technical Testing and Analysis Service - service was not partly performed in India - period of limitation - Held that:- the proviso to Rule 3(1)(ii) of Taxation of Services Rules, 2006 will be applicable in a case the service is partly performed in India. In the present case, there is no dispute that the service was provided outside of India and therefore, they are not covered under the said proviso. - Adjudicating authority directed to allow the refund to the Appellant in accordance with law. - Decided in favor of assessee.
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2016 (1) TMI 395 - CESTAT ALLAHABAD
Levy of penalty u/s 77 and 78 - appellant sought the benefit u/s/ 73(3) since it had already deposited the entire service tax objected by the Audit - Held that:- the transaction was properly recorded in the books of account regularly maintained by the assessee/appellant.- the issue was interpretational of notification and exempt on provisions and no active concealment or contumacious conduct having been found on the part of the appellant - penalty imposed under section 77 and 78 of the Act set aside - Decided in favor of assessee.
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2016 (1) TMI 394 - CESTAT NEW DELHI
Condonation of delay in filing of appeal before Commissioner (Appeals) - it was submitted that the concerned employee was on leave was given for delay in filing the appeal - Held that:- The delay was almost three months beyond the statutory time of three months. The learned Commissioner (Appeals) specifically examined the request for condonation of delay, to exercise powers under proviso to sub-section (3) of Section 85 of the Finance Act, 1994 and discussed the same in para 11 of her order. The material submitted by the appellants were examined and same are found to be factually incorrect and not in consonance with the pleadings made by the appellant. Accordingly, the ld. Commissioner (Appeals) came to the conclusion that there is no justifiable ground for condonation of delay as she was not satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the period of three months as stipulated under Section 85.
Condonation denied - Decided against the appellant.
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2016 (1) TMI 393 - CESTAT CHENNAI
Scope of Works Contract Service - extended period of limitation - bonafide belief - demand of service tax on works contract service of construction of pipeline and other structures for providing water supply for Tamil Nadu Water Supply and Drainage Board, in the Ananthapuram Town Panchayat of Villupuram - there was sufficient scope for the appellants to come into a bonafide belief that even during the said period, in absence of clear definition of the Works Contract Service to cover the specific service provided by them, no service tax was payable as the decision of the tribunal in their own case reported in 2008(12) STR 363 was in favour of them. Though this decision pertained to the period prior to 01.06.2007. We also noticed that the appellant had been informing the department of the contracts that they have entered into with various customers. The period involved being immediately after the introduction of Works Contract Service, clarity was required as to whether what was not covered under the erection, commissioning and installation service earlier, could be covered under the new service.
Since, in the instant case the issue appears to be latent to the interpretation of law at the initial stage of introducing due service, there was scope of bonafide belief that the appellants did not have to pay tax. Therefore, viewing from this angle, the non obtaining of service tax registration and non payment of tax could be due to the bonafide belief that no tax was payable even under Works Contract Service. Consequently, the appellant’s contention that no returns were filed could also be due to such bonafide belief. We do not find that failure of their part in obtaining registration and non payment of tax could be attributed to deliberate suppression of facts and intention to evade tax.
Invoking of the longer period of time limit is not justifiable in the instant case, as Sec 80 of the Finance Act, as it existed during the relevant time, would come to the appellant's rescue so far as invoking of the extended period of time limit is concerned. - Demand set aside - Decided in favor of assessee.
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2016 (1) TMI 392 - CESTAT NEW DELHI
Nature of sales incentive received from Mahindra & Mahindra Ltd. - Business Auxiliary Service (BAS) or in the nature of part of sales activity - Extended period of limitation - Held that:- it is not in dispute that whatever amount was received by the appellant was passed on the customers as incentive. Indeed the Commissioner (Appeals) recorded the fact that the entire component of sales incentive received had been passed on to the customers. Further, the respondent's appeal was allowed by the Commissioner (Appeals) on the ground of time bar also observing that the facts were in the knowledge of the Department by 05.12.2006 - Appeal of the revenue dismissed - Decided against the revenue.
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2016 (1) TMI 391 - CESTAT ALLAHABAD
Sub-Broker services or BAS - sale or purchase of the securities - the case of the department is that the sub-broker arranged business for their principal broker and they issued contract note-cum bills to the ultimate clients. For the services rendered, the sub-brokers are paid brokerage/commission by the principal broker. Thus, it was held that the sub-brokers are liable to pay tax under the category of 'Stock Broker Services'.
Held that:- During arguments an issue came up that the services provided by the sub-broker may not be brokerage service. It was only a service which facilitates the work of the Principal Stock Broker and therefore would get covered under the category of Business Auxiliary Services. We reject this view for two reasons. The first reason is that this view also taken in the case of Vijay Sharma [2010 (4) TMI 570 - CESTAT, NEW DELHI], was finally settled by the Larger Bench decision referred above. Secondly, we find that the show-cause notice in this case was raised on the respondent classifying the service as Stock Broker Service. Therefore, it cannot now be stated that the demand is payable under the Business Auxiliary Services.
Appeal of the revenue dismissed - Decided against the revenue.
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2016 (1) TMI 347 - GUJARAT HIGH COURT
Levy of penalty u/s 76 and 77 - tribunal deleted the penalty u/s 80 - The question therefore, to be decided in such case is whether the assessee established such reason for failure. - Held that:- When the department found that the assessee had received certain payments against which tax was not paid, the assessee contended that it was under bona fide belief that the amount received prior to insertion of explanation to section 67 would not invite tax. Under the insistence of departmental authority, they nevertheless, paid the entire tax along with interest on 4.1.2006, upon which a show cause notice was issued for imposition of penalty.
When the entire issue was debatable, the decision of the Tribunal to delete the penalty was perfectly justified - Decided against the revenue.
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2016 (1) TMI 346 - MADRAS HIGH COURT
Demand of service tax - principle of natural justice - their commercial operations were brought to a complete standstill, and hence, no liability was subsisting - Held that:- the petitioner should be given an opportunity of hearing, as the same is imperative, since the facts in the present case is to be decided and the question of law that arose for consideration also be properly dealt with. The matters in issue may adversely affect the petitioner with civil consequences and when such being the position, opportunity of personal hearing before passing such an order is a must. - Matter remanded back.
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2016 (1) TMI 345 - CESTAT CHENNAI
Demand of Interest beyond the scope of Show Cause Notice - appellant contended that show cause notice issued only for demanding service tax of amount of ₹ 2,40,780/- though the Order-in-original has appropriated an amount of ₹ 5,10,895/-, the interest cannot be demanded beyond the demand proposed in the show cause notice ie. ₹ 2,40,780/- and submits that the order demanding interest travels beyond the show cause notice - Held that:- It is seen that the recovery of interest of the entire service tax amount of ₹ 5,10,895/- was not covered in the SCN issued. The adjudicating authority has travelled beyond the SCN. Since he has appropriated the entire of amount of service tax, recovery of interest on the entire amount of service tax of ₹ 5,10,895/- is not covered under Section 73 (2) of the Finance Act, 1994. Hence, the appellant is required to pay the interest on the amount demanded in the show cause notice and confirmed by the adjudicating authority. Accordingly, the appeal is allowed. - Decided in favor of assessee.
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2016 (1) TMI 344 - CESTAT AHMEDABAD
Utilization of Service Tax, paid by one assessee, by the another assessee after merger between the two - M/s. BPC Projects had merged with M/s. PSP Projects Pvt. Limited on 01.4.2009. Therefore, all the assets and liabilities of M/s. BPC Projects were taken over by M/s. PSP Projects Pvt. Limited. Hence M/s. PSP Projects Pvt. Limited are rightly entitled to avail PLA balance lying with M/s. BPC Projects on 01.4.2009. M/s. PSP Projects Pvt. Limited have paid the service tax liability of M/s. BPC Projects also after 01.4.2009. Learned Consultant contended that they had intimated the department on 26.5.2009 about their intention to utilise the PLA balance lying with M/s. BPC Projects as on 01.4.2009 towards the service tax liability of M/s. PSP Projects Pvt. Limited after 01.4.2009.
Held that:- Simply because M/s. BPC Projects had not surrendered the service tax registration, it cannot be said that PLA balance lying unutilised was available with M/s. BPC Projects even after 01.4.2009. M/s. PSP Projects Pvt. Limited was the successor and the only legal entity with effect from 01.4.2009 and hence was legally entitled to utilise the said unutilised PLA balance. Hence, we find that the issue herein is only non-observance of procedure of intimation to Range Superintendent etc. and is only a technical violation, if any.
Adjustment of service liability allowed - Decide in favor of assessee on merit as well as on limitation.
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2016 (1) TMI 343 - CESTAT AHMEDABAD
Cenvat Credit - Courier Agency services used to send finished goods eligible as Input Service or not - the words “from the place of removal” were amended to read as “Up to the place of removal” - Held that:- after 01.04.2008, though the appellant would be eligible for CENVAT credit on the Courier Service used for sending/ receiving documents related to the business, or for movement of inputs and finished goods up to the place of removal, they would not be eligible for credit on Courier Services used in relation to movement of finished goods, after the place of removal.
The learned Counsel has relied upon the case law of Parle International Pvt. Limited [2012 (11) TMI 195 - CESTAT, AHMEDABAD]. On perusal of the same, it is observed that in that case the Courier Service was used for sending samples to the customers for approval and for communication with their head office to send documents and other correspondences. The Tribunal held that there is clear nexus with manufacture and hence credit is eligible. The Tribunal observed that credit can be denied only when the service has been received after the place of removal. Hence this case law is of no avail to the Appellants
Courier Service used by the appellants used for the movement of finished goods after the place of removal - Credit not allowed - Decided against the assessee.
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2016 (1) TMI 301 - MADRAS HIGH COURT
Erection, Commissioning or Installation Services - receipt of labour charges for installation and commissioning of GRP Pipes for various customers - period from 01.07.2003 to 31.10.2004. - Held that:- It could be seen from the amendment to Section 65(39a), introduced under Finance Act, 2005, that the definition of "erection, commissioning or installation" was extended so widely as to include (i) electrical and electronics devices, (ii)plumbing, (iii)heating, ventilation or air-conditioning, (iv) thermal insulation, (v) lift and escalator, and (vi) such other similar services.
The pipes that the respondent/assessee had to lay were not plant, machinery or equipment. Therefore, the learned Judge [2011 (8) TMI 698 - MADRAS HIGH COURT] was right in allowing the writ petition. - Decided against the revenue.
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2016 (1) TMI 300 - CESTAT CHENNAI
Valuation - Steamer agent services - reimbursement of expenses - inclusion of additional expenditure towards arranging drinking water, garbage clearance - expenses incurred by them for supply of mobile phones, and airtime charges, crew medical etc. - Held that:- the type of expenses involved in the present dispute will not definitely fall within the ambit of the taxable service vis-`-vis a steamer agency.
They are only courtesy services or assistance rendered by the appellants to shipping lines, beyond the scope of their contractual obligations. Obviously, the Appellant is the ship’s conduit in the port of call for contracted steamer agency service. There would sometimes also arise requests for assistance for the ship or her officers, on issues not related to ship’s husbandry or booking etc. of cargo of the genre billed in this case. The Steamer Agent, by virtue of their ongoing relationship with the shipping line, inevitably extends any such assistance requested for. Items that may be required for the ship or her officers for personal use are thus very often procured from the market and supplied by steamer agent. In my view, the billings made by the Appellant for expenses incurred by them for supply of mobile phones, and airtime charges, crew medical etc. would fall in this category of other/ additional assistance rendered and the value thereof is not required to be added to value of taxable services and hence no tax liability will arise on such value.
In the case of Sangamitra Services Agency [2013 (7) TMI 862 - MADRAS HIGH COURT], Hon’ble High Cout has held that if a receipt is for reimbursing the expenditure incurred for the purpose, the mere act of reimbursement, per se, would not justify the contention of Revenue that the same, having the character of the remuneration or commission deserves to be included in the sum amount of remuneration/commission.
Appeal filed by the Revenue gets rejected - Decided in favor of assessee.
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2016 (1) TMI 299 - CESTAT NEW DELHI
Cenvat Credit - duty paying document / invoice were issued to the non registered unit - supply of goods ( natural gas) through pipeline to local consumers and others - appellant had obtained Centralised Registration on 25.2.2010 which included Vaghodia compressor station - Held that:- Decisions of this Tribunal in Manipal Advertising Services Pvt. Ltd. Vs. C.C.E.,Mangalore - [2009 (10) TMI 434 - CESTAT, BANGALORE] and Well Known Polyesters Ltd. Vs. C.C.E., Vapi - [2011 (1) TMI 664 - CESTAT, AHMEDABAD], have clearly declared the principle that if a person is discharging service tax liability from his registered premises, the benefit of cenvat credit on the service tax paid by the service provider cannot be denied, only on the ground that the invoices are in the name of branch offices which were not separately registered. - Benefit of credit allowed - Decided in favor ofassessee.
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2016 (1) TMI 298 - CESTAT MUMBAI
Levy of penalty u/s 76 in a review passed by the Commissioner of Central Excise, Customs and Service Tax u/s 84 - Held that:- Since the issue involved in this appeal is before the adjudicating authority on remand from the Tribunal [2010 (12) TMI 89 - CESTAT, MUMBAI], we find that the impugned order in review which imposes penalty under Section 76, also needs to be set aside, as it does not survive when the order in original dated 31/10/2010 is already set aside by doctrine of merger.
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