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Service Tax - Case Laws
Showing 61 to 80 of 145 Records
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2016 (1) TMI 771
Development of land activity - Construction of complex - Tribunal has decided the issue in favor of assessee in [2014 (7) TMI 1017 - CESTAT NEW DELHI] - Apex Court found no ground to interfere with the judgment and order passed by the Customs, Excise and Service Tax Appellate Tribunal. - Revenue's appeal dismissed.
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2016 (1) TMI 770
Attachment and seizure by the Service Tax Department for substantial service tax dues not paid - there is no final assessment of the petitioner's duty and penalty liabilities. The petitioner is seeking installments for depositing the amount demanded by the Department, so that the bank accounts which are attached and the godowns of the petitioner which are sealed may be released from such attachment and sealing. - Held that:- we are of the opinion that, upon certain conditions, the bank accounts and the godowns of the petitioner can be released from attachment, provided the petitioner deposits a total sum of ₹ 3.54 crores which would include ₹ 2.46 crores already collected by the Department so far.
The Department shall release attachment of the bank accounts of the petitioner and remove the seals from the business godowns of the petitioner, on the conditions specified in the order.
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2016 (1) TMI 769
Valuation - exclusion of cost of goods used for providing taxable services - where the goods were neither sold nor reflected in invoice, nor VAT is paid/discharged on it - Scope of Notification No.12/2003-ST dated 20.06.2003 - Held that:- Having regard to the facts and circumstances of the case, following the Judgment of this court in Adlabs’ case [2010 (3) TMI 1087 - KARNATAKA HIGH COURT] and for the reasons stated therein, the instant appeal is dismissed as not maintainable. In view of the appeal being dismissed as not maintainable, answering the substantial questions of law in this appeal does not arise.
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2016 (1) TMI 768
Cenvat Credit - Allocation of input services to the concerned department as earned by the Table-C department - appellant provides taxable service as well as exempted service - appellant's submission is that when the records clearly demarcated the extent of credit allocable to departments in Table-A and Table-B that ought to have been verified by the Revenue before questioning. But that was not done - Held that:- Once the conduct of the appellant in the manner indicated by the material facts stated above is very clear because of the proportionality of the credits allocated, due to its division of the department and maintenance of records, there cannot be any presumption by Revenue that the appellant's case falls under Rule 6 (3) of CCR 2004. It is also apparent from record that the order passed by the Authority below is unreasonable for the reason that as against credit of ₹ 6,66,423/- allocated to the department in Table-B which provided exempted service, disallowance of entire credit of ₹ 1,11,07,075/- allocated to Departments in Table-A providing taxable service is contrary to the principal of proportionality. Therefore, entire disallowance does not call for any decision in favour of Revenue.
As an abundant caution, to make sure that the mathematical exercise is properly made by the appellant for allocation of credit rationally, the matter is remitted to the Adjudicating Authority to a limited extent to examine the allocation of the credit received by the appellant through departments in Table-C and allocable to departments in Table-A in the manner the appellant has carried out. Appellant's averment that the credit of ₹ 6,66,423/- allocated to the department in Table-B is reversed needs to be examined. - Matter remanded back for limited purpose - Decided in favor of assessee.
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2016 (1) TMI 767
Classification of Import of services from M/s. Society for Worldwide Interbank Financial Telecommunication (SWIFT) which is a non-resident entity, not having an office in India - reverse charge - service involved is transfer of information and also includes data processing - Banking and Other Financial Services or not - Held that:- From the detailed process involved, it is clear that the activities appear to amount to provision and transfer of information and data processing in relation to banking and other financial services, as defined under the Act and clearly covered under the entry provided in sub-clause (a)(vii) of Section 65(12) i.e. "provision and transfer of information and data processing".
As regards the contention of the appellant that SWIFT does not fall under the category of ‘banking and other financial institution's as SWIFT is not engaged in the business of banking and other financial services, we find that if any person provides the service which is covered under the four corners of definition of "Banking and Other Financial Services", it shall be taxable.
As per the plain reading of the definition, apart from ‘banking and other financial institution', the category of a person such as ‘body corporate' and ‘any other person' are also covered. Therefore it is not significant as to what is the nature of the person who is providing the service, but if the service is covered under the definition, such service is liable to service tax, even if it is presumed that SWIFT is not involved in "Banking and Other Financial Services". The service shall remain taxable as the service is clearly covered under the definition of "Banking and Other Financial Services" in clause (vii) of Section 65 (12). Moreover the appellant being liable to pay the service tax is ‘deemed service provider'. Therefore, the status of the appellant is required to be considered and not the status of service provider who is located outside India. For this reason the appellant is undisputedly the deemed banking and other financial institution. - However the demand of the period prior to 18-4-2006 is not sustainable.
On the issue of principle of mutuality, we find that the relationship between the SWIFT and the Appellant is not like club or Association and their members.
As regards the submission of the appellant that present case is of revenue neutrality as the tax payable on the subject service is cenvatable, we are of the view that the bank is providing various services, some of the services are taxable and some are exempted. Therefore, it cannot be decided that the entire service tax payable on services of SWIFT can be allowed as Cenvat Credit.
Merely because Section 80 was invoked, it cannot be said that proviso to Sec 73(1) shall not apply. Both provisions have separate ingredients. In the present case the appellant have not disclosed the data related to service charges paid to SWIFT to the department. Therefore, as there is a suppression of the fact on the part of the appellant, proviso to Section 73(1), gets correctly invoked.
Demand conformed invoking the extended period of limitation - Decided partly in favor of assessee.
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2016 (1) TMI 740
Conodonation of delay in filing of an appeal before Commissioner (Appeals) - appellant submitted that the delay in filing appeal before the Commissioner (Appeals) occurred mainly due to the reason that the appellant handed over the papers to Advocate Shri S.K. Sharma who did not follow up the case in time. - Held that:- there is no power to condone delay beyond condonable period under Section 85 (3A) of the Finance Act, 1994. - Commissioner (Appeals) cannot exercise powers beyond condonable period of limitation under Section 85 of the Finance Act, 1994. - Condonation denied - Decided against the assessee.
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2016 (1) TMI 739
Business Auxiliary Services - provision of services in relation to filing drawback claims, filing application for DEPB, EPCG licences etc. - change in the definition w.e.f. 10/09/2004 - . It is argued on behalf of the appellant that in spite of the amendment, the service provided by them does not fall under any of the categories (i) to (vii) under the Business Auxiliary Services head. - Held that:- the service provided by the appellant does not fall under any of the sub-Clause (i) to (vii) of Section 65 (19) under the head Business Auxiliary Services. We take notice of the fact that the appellant have neither facilitated sale of any goods of their client nor service. It is admitted fact that the appellants are not involved in any activity directly relating to promoting or marketing of goods. The appellants provided services like filing drawback claims, filing application for DEPB, EPCG licences, processing application for Star Export House Certificate etc.
The scope of Business Auxiliary Services (BAS) does not cover the activities of appellants as they do not deal with promotion or marketing of goods or services. There is no incidental or auxiliary service to such marketing. - Demand set aside - Decided in favor of assessee
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2016 (1) TMI 738
Provision of additional services to the purchaser of Cars - collection of RTO registration charges, Smart Card Fees, Vehicle Registration Fees and other extra charges - Business Support Services or Not - Held that:- The findings recorded by the lower authorities are incorrect as the definition of Business Support Services as per section 65(104c) of the Finance Act - Demand is unsustainable and liable to be set aside - Decided in favor of assessee.
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2016 (1) TMI 737
Validity of adjudication order passed 17 months after the personal hearing was over - It was contended that this unreasonable and unexplained delay itself vitiates the conclusion reached in the impugned order. - Held that:- In view of this affidavit and the stand taken by the Commissioner, we set aside the impugned order only on the ground of delay and which is long, unreasonable and unexplained in passing the adjudication order. - The impugned order dated 23rd January 2014 is, therefore, quashed and set aside. The show cause notice shall be adjudicated afresh and on appearance of the Petitioner a fresh order would be passed by the Adjudicating Authority within a period of 30 days from the date of conclusion of personal hearing. - Matter remanded back.
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2016 (1) TMI 736
Classification of service - Broker v/s Commission agent - activities of the respondent assessee as ship brokers - Tribunal in [2012 (12) TMI 477 - CESTAT NEW DELHI] set aside the demand by observing that, From the nature of their activity it is clear that brokers are purely intermediaries who do not act on behalf of either ship owner or the charterer and, therefore, they cannot be said to be commission agents & not covered by the definition of 'Business Auxiliary Service" - Apex Court dismissed the revenue appeal on ground of delay as well as on merit of the case.
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2016 (1) TMI 735
Restoration of appeal - Non compliance of pre deposit order - HC in [2014 (7) TMI 668 - MADRAS HIGH COURT] has observed that, Tribunal has, in our considered opinion, rightly dismissed the appeal for non-compliance of the provisions of Section 35-F of the Central Excise Act. - No substantial question of law arises - Apex Court dismissed the appeal of the assessee.
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2016 (1) TMI 704
Management, Maintenance and Repair service - Liability of service tax - inclusion of Value of goods - cost of the goods supplied during repair - Held that:- Having considered the rival contentions and in view of the settled legal position in the case of Samtech Industries (2014 (4) TMI 995 - CESTAT NEW DELHI), upholding the order of this Tribunal by the Hon'ble High Court of Allahabad [2014 (8) TMI 1023 - ALLAHABAD HIGH COURT] and also in view of the letter of the CBE&C accepted the legal position that the cost of items supplied/sold and there is documentary proof specifically indicating value of the goods, the demand of Service Tax against the assessee for the cost of the goods supplied during repair does not appear sustainable. In this view of the matter, we set aside the impugned order and allow the appeal with consequential benefits. - Decided in favour of assessee.
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2016 (1) TMI 703
Works contract - construction of residential houses - taxability prior to 01/06/2007 and after - Held that:- the applicant is not liable for service tax for construction of independent houses, in view of the Tribunal’s decision in Macro Marvel Projects Ltd. vs. CST, Chennai [2008 (9) TMI 80 - CESTAT, CHENNAI]. The service tax liability of the applicant for the period prior to 01/06/2007 is not on strong ground. Similarly, the tax liability under Jawaharlal Nehru National Urban Renewal Mission and Rajiv Awaas Yojana in terms of Notification No. 28/2010-ST appears not sustainable. The applicants do not have prima facie case regarding claim of pure supply of goods contract, construction of godown and fencing and other work done for Nagar Nigam etc. Considering all these facts and also the fact that they have discharged service tax of ₹ 7.38 lakhs already, we find it fit and proper to order for further deposit of ₹ 7.5 lakhs with proportionate interest - stay granted partly.
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2016 (1) TMI 702
Interconnection service - Online Information Access and/or Database Retrieval Service - From April 2004 to April 2006 - appellant submitted that the demand which has been raised is for interconnection service which is not taxable as per the Boards Circular dated 09/07/2001. - Held that:- the Board did not want to tax the amounts recovered by an ISP for interconnectivity services. Such a stated stand cannot be overlooked by the adjudicating authority who is functioning under the Board. Be that as it may, there is nothing on record to show that small time ISPs who had rendered the services to their clients by taking connection from the appellant had not discharged any service tax liability on the amounts collected by them from their clients/customers. It is settled law that the revenue cannot argue against their own Boards clarification. - Demand set aside - Decided in favor of assessee.
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2016 (1) TMI 701
GTO service - Tribunal [2006 (12) TMI 504 - CESTAT CHENNAI] allowed the appeal of the assessee - Not only the tax effect is minimal, even otherwise the case is squarely covered against the Department by the judgment of this Court in Laghu Udyog Bharthi v. Union of India [1999 (7) TMI 1 - SUPREME COURT OF INDIA]. The appeal is, accordingly, dismissed.
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2016 (1) TMI 700
Condonation of delay in filing of appeal before the Commissioner (Appeals) - HC in [2015 (1) TMI 859 - ORISSA HIGH COURT] refused to condone the delay - Apex Court dismissed the appeal of the assessee.
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2016 (1) TMI 676
Rectification of Mistake - Revenue is of the view that the said Notification No. 45/2010-ST dated 20.07.2010 would apply only to the services provided in relation to "transmission and distribution of electricity" and not to those relating to "power generation and supply of electricity" - Held that:- The application for Rectification of Mistake is devoid of merits as we find that by Notification No. 45/2010-S.T, Central Government had retrospectively exempted all the services rendered to the transmission and distribution of electricity provided for the period 26.02.2010 upto 21.06.2010. The words used in the Notification are "for the services relating to transmission and distribution of electricity" and undisputed facts are that NTPS Nashik are engaged in "power generation and supply of electricity". The supply of electricity cannot take place except by way of transmission and distribution. In view of this, we find that there is no error in order. Accordingly the application for Rectification of Mistake is dismissed. - Decided against revenue
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2016 (1) TMI 674
Condonation of delay in appeal before First appellate authority - Levy of penalty where service tax and interest has been paid earlier - bonafide belief - Held that:- With regard to service tax liability as well as levy of penalty, an order had been passed which was questioned by the petitioner before the Appellate Authority with the delay of 128 days. Since there was no power vested, the Appellate Authority refused to condone the delay in filing the appeal and dismissed the same. Hence, the order of the Appellate Authority does not suffer from any legal infirmity.
At the same time, considering the specific circumstances and also the fact that the tax as well as interest had already been paid, and the petitioner confined his prayer to penalty alone, this Court is inclined to direct the Appellate Authority to look into the issue afresh and pass appropriate order on merits after hearing the petitioner. Such an exercise shall be completed, within a period of 4 weeks, from the date of receipt of a copy of this order. - Matter remanded back.
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2016 (1) TMI 668
Penalty imposed under Section 78, and also under Section 76 and 70 - service tax was paid before issuance of SCN - Held that:- Considering that the appellant is a proprietorship concern and the services were rendered to a Private Limited Company in organised sector and the services were duly recorded in the books of accounts, and also considering the financial difficulties of the proprietorship concern and the fact that they have paid the amount of ₹ 7,43,141/- before issuance of show cause notice, we consider that imposition of penalties under Section 76 and Section 70 are not warranted in the present case, especially so since equivalent penalty has been imposed under Section 78 of the Finance Act, 1994. We find that the original adjudicating had already offered the appellant the option to pay 25% of the equivalent penalty imposed under Section 78, subject to the conditions prescribed under the provisions of Section 78 of the Finance Act, 1994. Therefore, we uphold the impugned order-in-original with regard to imposition of penalty under Section 78. However, we set-aside the penalties imposed under Sections 76 and 70 of the Finance Act, 1994. - Decided partly in favour of assessee.
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2016 (1) TMI 655
Service tax demand under Construction Service (CS) / Commercial or Industrial Construction Service (CICS) / Works Contract (WC) - abatement option seeked - interest and penalties confirmed - Held that:- The demand relating to denial of abatement on the ground that the value of material supplied free of cost by the service recipient was not included in the assessable value is set aside.
The demand relating to DMRC IT Park contract is also set aside.As regards the demand relating to service tax on mobilisation advance and on account of denial of composition scheme, the appeal is allowed by way of remand for de novo adjudication and re- computation of demand on the basis of the principles laid down.
Before de novo adjudication, the adjudicating authority shall give an opportunity to the appellant to be heard. Needless to say that the penalties will have to be re-adjusted in accordance with the demand so recomputed.
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