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Service Tax - Case Laws
Showing 41 to 60 of 145 Records
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2016 (1) TMI 926
Delay in filing of an appeal before Commissioner (Appeals) - Appellant contended that, there has been no real delay in the filing of the appeal - Revenue contended that assessee has filed the appeal beyond the condonable period - At this stage of the hearing of the above matters, the learned counsel appearing on behalf of the assessee had submitted that the assessee may be permitted to file an appeal before the Customs, Excise and Service Tax Appellate Tribunal, under Section 86 of the Finance Act, 1994, on depositing 10% of the service tax demanded by the department, leaving it open to the assessee to show that in fact, there was no delay in the filing of the appeal before the Commissioner (Appeals), while challenging the Order-in-Original, dated 27.1.2011.
Held that:- this court finds it appropriate to permit the assessee to prefer an appeal against the order of the Commissioner of Appeals, dated 27.1.2011, before the Customs, Excise and Service Tax Appellate Tribunal, within 15 days from the date of the receipt of a copy of this order. The assessee shall deposit 10% of the service tax demanded by the department, before the filing of the said appeal. It would be open to the assessee to prove, by sufficient evidence, before the Appellate Tribunal, that the appeal filed by the assessee, before the Commissioner of Appeals, was within the time limit prescribed by the relevant provisions of law.
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2016 (1) TMI 925
Waiver of pre-deposit - appellant was suffering undue financial hardship - Tribunal has passed the impugned order directing the appellant to deposit a sum of ₹ 20,00,000/- - Held that:- In the facts and circumstances of the case, this court finds it appropriate to set aside impugned order, dated 12.10.2015, passed by the Tribunal and to remit the matter back to the Tribunal, to decide the issue relating to the plea of the appellant that it was suffering undue financial hardship. Accordingly, the impugned order of the Tribunal is set aside and the matter is remitted back to the Tribunal for consideration of the said issue and to pass appropriate orders thereof. It is for the appellant to furnish sufficient evidence before the Tribunal to substantiate its claim that it was suffering undue financial hardship. - Matter remanded back.
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2016 (1) TMI 924
Self adjustment of excess service tax paid towards payment of service tax during the subsequent period - appellants had not intimated the said adjustment to the department - Rules 6(4A) and 6(4B) of the Service Tax Rules, 1994 - Held that:- there is no dispute about the fact that appellants have paid excess service tax amount of ₹ 2,49,858/- in May 2010. The dispute revolves around the procedure they have followed in adjusting the said excess amount against the future service tax liabilities in June, July and August 2010 suo-moto. We find force in the arguments of the learned Senior Adviser of the appellants that infringement of the procedure is not serious enough to impose equivalent penalty of ₹ 2,49,858/- under Section 78 in the instant case. It is so especially, since in reality there is no short payment of service tax of ₹ 2,49,858/- in the instant case, and it is a question about adjustment of excess service tax paid which has been adjusted suo-moto against the subsequent service tax liability.
Demand of duty and penalty set aside - levy of penalty of ₹ 5,000/- u/s 77 upheld - Decided in favor of assessee.
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2016 (1) TMI 923
Levy of penalty u/s 76 and 78 - waiver u/s 80 - delay in payment of service tax - earlier have not filed ST-3 returns and have not remitted the service tax collected from the customers to the Govt. exchequer - only after the investigation was started the Respondents started paying the service tax though belatedly. - Held that:- There is enough reason to view the non-payment of service tax on due dates by the Respondents leniently. It is observed that the Respondents have paid almost the entire amount of service tax due before issuance of show cause notice. We also find that the legislature in its wisdom has also amended the provisions of Section 78, albeit from 01.4.2011, that the penalty under Section 78 may be reduced to 50% when true and complete details of the transactions are available in the specified records. In view of the same, we hold that the equivalent penalty imposed on the Respondents under Section 78 of the Finance Act, 1994, is to be reduced to 50% of the same in respect of the first show cause notice dated 30.08.2011, provided that the Respondents pay the said amount within thirty days from the receipt of this order. - Decided partly in favor of assessee.
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2016 (1) TMI 889
GTA service - Denial of benefit of 75% exemption in respect of GTA services for want of an endorsement on the consignment note to the effect of non availment of Cenvat credit and Notification No. 12/2003-ST on consignment note of the transporter. - exemption notification No. 32/2004-ST - Held that:- We find that in the various judgments, issue in question has been settled that the assessee where liable to pay service tax could not be insisted upon to produce the proof of non availment of Cenvat credit and Notification No. 12/2003 which is not requirement of notification. We therefore set aside the demand of service tax, interest and penalties confirmed in the impugned order. The appeal of the assessee is allowed with consequential relief - Decided in favor of assessee.
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2016 (1) TMI 888
Supply of tangible goods - revenue was of the view that allowing use of such capital assets amounts to providing of services, namely, "supply of tangible goods" service. - Held that:- It is not disputed that the appellants have already discharged VAT on the transaction. The terms of the agreement have been examined in the Order in Appeal in detail. Hon'ble High Court of AP in case of Rashtriya Ispat Nigam Ltd. vs Commercial Tax Officer [1989 (12) TMI 325 - ANDHRA PRADESH HIGH COURT] - The contract needs a detailed examination vis a vis the decisions of the courts interpreting this constitutional provision. Considering that the appellants have paid VAT on the transaction it will be in the interest of justice to allow stay of the recovery subject to deposite of Rs Three Lakhs only within eight weeks of this order. - stay granted partly.
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2016 (1) TMI 887
Refund of service tax on services used for export of goods - GTA Services and Port Services. - co-relation of Service Tax paid by the Service providers - Notf No. 41/2007-ST dt 6/10/2007 - Held that:- Though the clarification vide Circular No. 120/01/2010-ST dt 19/10/2010 was with respect to Notf No. 5/2006-CE(M.T) but it clearly conveys that in budget 2009 the scheme under Notf No. 41/2007-ST was simplified in Notf No. 17/2009-ST by providing self certification or Chartered Accountant’s certification about co-relation and nexus between input Services & the exports. That above logic can be followed for Notf No. 5/2006-CE(MT) where such simplification of Notf No. 17/2009-ST may not be available. As the benefit of CBEC Circular dt 19/10/2010 and relied upon case laws were not available before the adjudicating authority, the matter is remanded back to the Adjudicating authority to decide the matter on the basis of Chartered Accountant’s certificate to establish the co-relation required under Notf No. 41/2007-ST - Matter remanded back.
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2016 (1) TMI 886
Levy of penalty - appellant has discharged 25% of the amount of service tax on 05/03/2014, while they received the order-in-original on 28/01/2014 - advance payment for construction work - appellant has already discharged service tax liability before issuance of the show cause notice and also discharged interest liability on issuance of the show cause notice. - Held that:- the period for discharging service tax and penalty has been extended to 90 days if the value of the service tax is less than ₹ 60 lakhs during any of the years, which I find in this case is to as, per annexure to show cause notice. Accordingly, accepting the amount of penalty paid by the appellant as sufficient compliance to Section 78 of the Finance Act, 1994, the appeal is disposed of.
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2016 (1) TMI 885
Club or Association Services - collection of subscription from their members during the period 2005-06 - Held that:- appellant was collecting subscription from their members of the Federation and therefore, the Federation is covered under the ambit of 'Club's or Association Membership Services' under the provisions of Section 65 of the Finance Act, 1994. This issue is no more res-integra in view of various decisions of the Hon'ble Gujarat High Court and the Tribunal - Demand set aside - Decided in favor of assessee.
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2016 (1) TMI 851
Classification - Activity of arrangement for dispatch and transportation of goods to various destinations as per the directions of the service recipient - clearing and forwarding agent service - bona fide belief - Extended period of limitation - Held that:- as per the activities performed by the appellant, it is squarely covered within the definition of clearing and forwarding agent and it provided service to a client in relation to clearing and forwarding operations.
Extended period of limitation - Bona fides belief is not a hallucinatory belief; it is a genuine belief of a reasonable person operating in an appropriate environment. When the terms of the agreement were so clear, any reasonable person operating in an appropriate environment would have no basis to entertain a belief that the service rendered by it in terms of the agreement cited above by any stretch of imagination would not be covered under the scope of clearing and forwarding agent service. Therefore the extended period has been rightly invoked. - Demand confirmed - Decided against the assessee.
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2016 (1) TMI 850
Territorial Jurisdiction - SCN issued by Mumbai Office of Service Tax Department for whole of India offices - assessee have separate registration for each premises - Import of service - payment made to foreign architects for service of concept design and interior decoration of their Multiplexes. - They also received 'Pouring Fees' and 'Signing Fees' - Held that:- The Commissioner should have refrained from adjudicating and instead could have initiated the process of making show cause notice answerable to the jurisdictional Commissioners or he should have written to the Central Board of Excise and Customs seeking power to adjudicate the case of services rendered pan India just as DGCEI has the power to issue the show cause notice on pan India basis. - the demand of ₹ 38,39,984/- is confirmed beyond the jurisdiction of the Commissioner and, is therefore, set aside as invalid. - Decided in favor of asessee.
Import of services - 'pouring fees' and 'signing fees' - Held that:- clearly the service activity involved is not sale of space and time as contended by the appellant. What is sold is the right to advertise and promote the product of the CCIPL. Similarly right to use the Inox Logo, as contended by the Ld. Advocate is not the right that is under consideration before us. What is under consideration is the right to promote the product of CCIPL for which CCIPL pays fees to the appellant. It is beyond doubt, therefore, that that the services provided are covered under BAS.
Appellant provided BAS to its client CCIPL on which tax is payable. However, we agree with the appellant that the service tax on import of 'Architect Services" attracts levy of service tax only from 18/4/2006 onward. We need not dwell on this issue that service tax on import of services is payable by the recipient of the service under Section 66 (A) only w.e.f. 1/5/2006 when the Section 66(A) was brought into effect. This is the settled legal position.
Decided partly in favor of assessee.
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2016 (1) TMI 849
Waiver of pre-deposit - import of services - Held that:- While it may be arguable that the service provided by the Representative Offices of the appellant to the appellant would amount to import of service in view of Explanation -1 to Section 66A (2) of the Finance Act, 1994, at this interlocutory stage, in view of the above quoted observation of CESTAT in the case of Torrent Pharmaceuticals Ltd., the appellant deserves waiver of pre-deposit - Stay granted.
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2016 (1) TMI 848
Extended period of limitation - Valuation - Real Estate Agent services - inclusion of administrative charges/transfer charges recovered by it from its clients - bonafide belief - Held that:- It is seen that the primary adjudicating authority in the impugned order has clearly noted that the appellant undoubtedly accounted for all the transactions in the statutory records. But the primary adjudicating authority held that the appellant was guilty of wilful misstatement/suppression of facts with intention to evade service tax as it never approached the Department to ascertain the details of their liability to pay service tax and the evasion would have gone undetected but for the investigation by the Department. In this regard it is pertinent to mention that in case of a bona fide belief about the non-taxability of certain transactions, the appellant would not approach Revenue for any clarification because clarification is sought only when there is some confusion/doubt.
Matter remanded back - Extended period in this case is not invocable and therefore penalty under Section 78 ibid is also not sustainable - The appellant is eligible for the cum tax benefit. - Decided partly in favor of appellant.
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2016 (1) TMI 847
Refund of service tax - Eligibility for exemption of Notification No..41/2007-ST, dated 06.10.2007 - Held that:- There is no doubt that the service tax was paid on GTA service by the respondent and the goods were transported directly from the factory to the port. In this case, there is a merchant exporter involved, but the merchant exporter cannot claim the refund of service tax that was not paid by him. Seen in the context the provisions of clause 2(b) of the Notification, which has to be read harmoniously with the provisions of clause 2(a), once it is settled that the respondent was eligible for the benefit of exemption Notification No.41/2007-ST the sanction of refund is only the operationalisation of the said exemption.
As decided in case of Gee Pee Agri Pvt. Ltd. Vs. CCE [2015 (9) TMI 362 - SUPREME COURT ] there is some dispute about who is entitled to the refund of service tax, but in any case, the respondents cannot hold the service tax since they are not entitled to do so. The service tax should be refunded to the petitioner within six weeks. - Decided against revenue.
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2016 (1) TMI 846
Marketing and advertising activities undertaken for ICICI Bank - Business Auxiliary Service or Not - Commissioner (Appeals) held that services rendered did not fall under BAS - Extended period of limitation - Levy of penalty - Held that:- neither at the time of adjudication at the primary level nor at the first appellate level, the issue of time bar was raised, though it being a mixed question of fact and law, it can be raised at this stage. However, we find that the nature of service rendered was such that it was clearly covered under the definition of BAS. The respondent has not been able to demonstrate as to how and on what basis it had a bonafide belief that the impugned service did not fall under BAS. Bonafide belief is not a hallucinatory belief; it is a belief of a reasonable person working in appropriate environment. It can hardly be the respondent's case that it was guided by CESTAT judgment.
Revenue's appeal allowed except that penalty under section 76 is set aside and penalty under section 78 is reduced to 25% of ₹ 5,82,025/- provided the respondent pays the entire amount of service tax alongwith interest and reduced (25% of ₹ 582025/-) penalty within 30 days of receipt of this order. It is clarified that amount already paid towards the impugned demand /interest penalty will be counted for this purpose. - Decided in favor of Revenue.
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2016 (1) TMI 825
Rejection of VCES-I declaration - it was submitted that the inquiry initiated by the DGCEI is of roving nature as general inquiry was made from various other assessees also - Held that:- against both the appellants the DGCEI issued letter dated 17/1/2013 and 19/2/2013 asking for some information and documents related to their taxable activity. In the said letter it was mentioned that information is called for under Section 14 of the Central Excise Act, 1944.
Board circular No. 170/5/2013-ST dated 8/8/2013 and No. 174/9/2013-ST dated 25/11/2013 clarified the same issue - From the above clarification, it is clear that if the information is sought of roving nature even though communication regarding seeking information quoted Section 14 which shall not attract provisions of Section 106(2)(a). The cases of the appellants are squarely covered under the above clarification - Board Circular binding on the departmental officers. - The Ld. Adjudicating authority should have accepted the declaration filed by the appellants - VCES declaration cannot be rejected - Decided in favor of assessee.
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2016 (1) TMI 824
Delay in filing of appeal before Commissioner (Appeals) - Date of service of order in original - Revenue argued that there was presumed service when order was sent by Registered Post with Acknowledgement Due (RPAD) as per Section 37C(1)(a) ibid. Revenue also argued that amendment to Section 37C ibid to include speed post with proof of delivery as a mode of service with effect from 10.05.2013 was clarificatory in nature and therefore had retrospective applicability. - Held that:- As during the relevant period, the primary adjudicating order was required to be sent by RPAD, sending it by speed post would not fulfil the requirement of the said section. The amended provision of Section 37C(1)(a) ibid effective from 10.05.2013 allows sending of the orders by “speed post with proof of delivery”. It is admitted by Revenue that in this case, it has no proof of delivery of the primary adjudication order.
It is not in dispute that the appeal was filed within the stipulated period after the appellant obtained copy of the primary adjudication order. - In the light of the foregoing analysis, we waive the requirement of pre-deposit and allow the appeal by way of remand to the Commissioner (Appeals) with the direction to take up the appeal along with stay application and decide the same on merit.
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2016 (1) TMI 823
Taxability of SMS termination service rendered by the appellant to other telecom operators - whether under the Point of Taxation Rules, 2011 service tax is payable on the SMS termination service rendered by the appellant to other telecom operators with whom neither a contract for service has been signed nor any consideration has been received. - SMS termination charges are payable by the originating telecom operators to the terminating telecom operator for the service provided by the terminating telecom operator. The termination charges are governed by the guidelines issued by the Telecom Regulatory Authority of India (TRAI). The actual charge of SMS termination service between the operators began with effect from 01/04/2011. Although some operators agreed to pay for SMS termination service to the terminating telecom operators i.e. the appellant in this case, whereas six operators did not sign any agreement with the appellant for payment of termination charges nor they paid any such charges for the termination services received from the appellants.
Held that:- From the explanation to the Rule 6 of POT Rules, it is clear that in the present case the same does not apply. This is because the provision of service is not determined periodically in terms of any contract, which requires service receivers to make any payment. As there is no such contract requiring service receiver to make any payment, the point of taxation is to be determined in terms of clause (a) of Rule 6. Under Rule 6(a), where a continuous supply of a notified service is provided under a contract, the determining point is date of issue of invoice. The fact remains that service was provided under a contract; the absence of consideration clause in the contracts does not come in the way of determining the point of taxation under Rule 6 (a). Undoubtedly therefore, in the present case the service is provided when the invoice is issued. Where invoices were not issued within fourteen days of the completion of the service, the point of taxation was to be the date of such completion.
It is apparent that the point of taxation will be when the invoice for the service provided is issued.
Date of Invoice versus date of demand letters issued by the appellants - Held that:- The demand letters complied with the substantive provisions of Rule 4A and therefore, may be considered as invoices. Formal invoices were not issued by the appellant because service receivers were not ready to enter into a contract with the appellant even though they were receiving service continuously from the appellant. Therefore, we hold that service tax is payable by the appellant on the basis of the demand letters.
Extended period of limitation - Held that:- The appellant issued demand letters. It is clearly been brought out in para 23 of the impugned order that the appellant never declared the provision of service rendered or taxable value in the service tax returns filed with the department. Failure to fulfill this legal obligation cast on the service provider, is a case of suppression of facts especially when the appellant had raised demand letters on the service receivers quantifying the charges payable for the services rendered by the appellant.
Demand of service tax confirmed invoking extended period of limitation - Decided against the assessee.
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2016 (1) TMI 822
Refund - unjust enrichment - service tax was paid wrongly - appellant contended that CBEC Circular No. 108/02/2009-ST dated 29.1.2009 clarified that the builders/ promoters are not liable to pay service tax under the category of construction of complex service defined under Section 65(105) - Held that:- Commissioner (Appeals) has held that the appellant was not promoter/builder of residential complex only on the ground that the appellant made payment of service tax under No. 00440290 which is applicable to industrial construction service and not under Code No. 00440334 which is applicable to residential complex service. We are unable to accept this ground as a valid ground for the said purpose in the absence of any other evidence to support the conclusion of the Commissioner (Appeals), that appellant was not promoter/builder of residential complex because payment of service tax under code number assigned to Industrial Construction Service cannot be a clinching evidence to discard the assertion of the appellant that it was promoter/builder of residential complex.
It is evident that the amount of service tax of which refund was sought was indeed not payable by the appellant. As regards the issue of unjust enrichment, we find that the Commissioner (Appeals) has recorded cogent finding regarding the failure of the appellant to discharge the onus that the burden of service tax was not passed on to others. The CA certificate submitted by the appellant to support of its contention that the burden of service tax was not passed on had no contact number and also did not contain the CA's membership number assigned by the Institute of Chartered Accountants of India.
In the light of the above, we hold that the impugned service tax (of which refund has been sought) was not payable and allow the appeal by way of remand to the Commissioner (Appeals) for de novo adjudication only for the limited purpose of considering the appellant's submissions with regard to discharge of its burden to demonstrate that the burden of impugned service tax was not passed on to others. - Decided partly in favor of assessee.
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2016 (1) TMI 821
Import of IPR services - reverse charge - Levy of service tax on Technology Transfer fee paid to Whirlpool, USA - Non payment of service tax on Brand Fee - Cenvat Credit - non-maintenance of separate records for taxable and exempted services - Held that:- It is evident that the agreement is entered for the purpose of supply of technology/technical assistance/information by Whirlpool, USA to the appellant and the remuneration received by Whirlpool, USA is only for the use of the same by the appellant. There is nothing on record that any of the said technology/technical know-how/information is registered or patented under Indian law. - only such intellectual property rights which are covered under Indian law in force alone are chargeable to service tax under IPR service. The Commissioner does not identify any Indian law under which the technology transfer and technical assistance involved in this case is covered.
Demand of service tax on Brand fee - Held that:- service tax on IPR service is exempt only to the extent of the R&D cess paid towards the import of technology under the provisions of Section 3 of the R&D Cess Act, 1986 in relation to such intellectual property service (emphasis added). It is admitted that no service tax was paid under IPR service on the amount paid for such technology transfer which means that the appellant also was of the view that such technology transfer was not in relation to IPR service. Indeed in the preceding para, it is held that such technology transfer is not covered under IPR service. Consequently, the appellant was not eligible to deduct the R&D cess it paid on technology transfer from the service tax payable under IPR service as such technology transfer was not in relation to intellectual property service. Thus the component of impugned demand amounting to ₹ 9,97,608/- is sustainable on merit.
Cenvat Credit - Held that:- Adjudicating authority is only bound by the orders of the superior adjudicating authority like CESTAT and the observations of the Committee of Chief Commissioners are of administrative nature and not of quasi-judicial nature to have any binding effect on adjudicating authority. Thus there is no doubt that even in the opinion of the adjudicating authority, component of demand confirmed on account of non-maintenance of separate accounts of taxable and exempted services is not sustainable.
Extended period of limitation - It is seen that the components of demand on technology transfer and with regard to R&D cess were the subject matter of an earlier show cause notice dated 17.10.2008 issued to the appellant covering an earlier period 2005-06 & 2006-07 - the extended period in the present case is not invocable which will make these components of the impugned demand time-barred because the show cause notice was issued on 05/04/2010 for the period up to March 2008.
Demand set aside - Decided in favor of assessee.
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