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Service Tax - Case Laws
Showing 81 to 100 of 145 Records
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2016 (1) TMI 654
Levy of penalty for Delay of payment of service tax due to Bank refused to take deposit of tax in absence of PAN based registration number - delay of one week due to obtaining PAN based registration number - Held that:- Appellant had paid the amount of tax within a week, on being so pointed out by the Revenue much before issuance of SCN, which was issued on 19.05.2011, months after the amount was paid. - no case of deliberate default or contumacious conduct, is made out against the Appellant - Penalty dropped - Decided in favor of assessee.
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2016 (1) TMI 653
Service tax liability under the category of ‘Commercial and Industrial Construction' services - penalties imposed - Held that:- It is seen from the records that appellant has been constantly disputed the service tax liability without providing any details to the lower authorities is an indicator that the appellant's intention to evade service tax liability. Accordingly, we hold that the penalty imposed by the first appellate authority under Section 78 of the Finance Act, 1994 is correct. However, we find that the first appellate authority has not extended the benefit of paying 25% of the penalty imposed under Section 78 as per the provisions.
Reproducing the provisions of Section 78, the first appellate authority should have extended the benefit of payment of reduced penalty to the appellant herein, as it is undisputed that the appellant had already discharged the service tax and interest thereof. In view of this we find that the appellant needs to be extended the benefit of discharge of penalty of an amount of equivalent to 25% of the service tax liability ascertained in this case. We do so. Appellant shall discharge the penalty under Section 78 as imposed by the first appellate authority within 30 days of the receipt of certified copy of this order and report the same to the adjudicating authority and the first appellate authority; failing which, appellant shall be required to discharge the entire penalty as imposed by the first appellate authority.
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2016 (1) TMI 651
Classification of taxable service - Job work - activity of re-rubberisation of old, worn out rubberized rollers - Business Auxiliary Service or Management, Maintenance or Repair Services liable to pay service tax - Held that:- Tribunal in the case of Zenith Rollers Ltd. Vs. CCE, Noida [2013 (12) TMI 620 - CESTAT NEW DELHI]. It was observed in the said decision that the activity is equally classifiable under Business Auxiliary Service as also on Management, Maintenance or Repair Services. However inasmuch as the Business Auxiliary Service came into existence before the Management, Maintenance or Repair Service, the same has to be adopted. If that be so the same would be entitled to the benefit of exemption notification. - exempted from payment of service tax in terms of Notification No. 14/2004 - Demand set aside - Decided in favor of assessee.
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2016 (1) TMI 650
Taxability of sub-consultancy services provided to the main consultant - The appellant during adjudication took a categorical stand that the main consultant has discharged the service tax liability on the entire value of the contract and as such there is no legal liability on the assessee who is only a sub-consultant, to pay the service tax. - Held that:- As such we find that the dispute revolves around the evidence required to be produced by the assessee to show that the main consultant had paid the service tax on the full value. As per the appellant the said evidence was produced before the original adjudicating authority, who has not adverted to the same. Ordinarily in the case of dismissal for non-compliance we would have remanded the matter to Commissioner (Appeals) but as in the present case documentary evidences are required to be examined and verified, we deem it fit to remand the matter to the original adjudicating authority. - Matter remanded back.
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2016 (1) TMI 649
Credit on services not qualified as input services - Denial of credit on Professional Services, Medical Insurance and Car Insurance - credit on service tax paid on Professional Services have been denied for the reason that the invoices issued by the service provider are to the appellants office at Delhi, whereas the factory of the appellant is located at Faridabad - Held that:- There is no dispute about the service availed or the tax paid. Merely because the invoices did not contain the address of factory at Faridabad, which is purely technical, the appellants cannot be denied the benefit provided under law. The issue has been decided in favour of the assessee in Bloom Dekor Ltd. v. CCE, Ahmedabad [2013 (2) TMI 301 - CESTAT, AHMEDABAD] and National Engineering Industries Ltd. v. CCE, Jaipur (2013 (6) TMI 590 - CESTAT NEW DELHI ) in which cases, the facts are similar to the instant case. Applying the ratio of the above judgments appellants are entitled to credit of the tax on Professional Services.
The credit on car Insurance and Medical Insurance were denied for the reason that they have no nexus with the activity of manufacture. During the relevant period the definition of input services had a very wide ambit covering all activities related to the business of manufacture. Therefore do not find any reason to disallow the above. - Decided in favour of assessee
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2016 (1) TMI 628
Refund - service tax was mistakenly paid - Adjudicating Authority rejected a refund claim filed by the appellant on the grounds that appellant has voluntarily paid service tax under Manpower Recruitment Agency Services - Held that:- , there is strength in the argument of the appellant that the amount of service tax paid under the head Manpower Recruitment Agency Services was not correct and the refund of the same should be sanctioned to the appellant. It is also observed from the case records that nowhere in these proceedings it has been held by the Adjudicating Authority or the First Appellate Authority that services provided by the appellant fall under the category of Manpower Recruitment Agency Services. In the absence of any such findings, an amount paid by the appellant under Manpower Recruitment Agency Services is required to be refunded because no tax can be collected without the authority of law. - Decided in favor of assessee.
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2016 (1) TMI 627
Mandatory pre-deposit (under Section 35F of the Central Excise Act, 1944, as amended with effect from 6-8-2014) - appellant had already remitted about 73% of the assessed demand as against the requirement of 7.5% - supply of tangible goods for use service - Held that:- The deposit by the assessee is however admittedly not for rendition of supply of tangible goods for use service but for Transportation of Passengers by Air Service.
Compulsory pre-deposit under Section 35F imposed with effect from 6-8-2014 invites a mere administrative process, of ascertaining whether pre-deposit as stipulated was made at the time of filing the appeal or whether remittance of any Service Tax/penalty even prior to the institution of the appeal is for the same service category as is assessed and therefore counts towards compliance with the clear mandate of the amended Section 35F.
On the aforesaid analysis, the plea in the present application is mis-conceived as is the application. Misc. Application is rejected. The appellant shall deposit 7.5% of the assessed demand within two weeks from today, in default, the appeal shall stand rejected for failure of the mandatory pre-deposit.
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2016 (1) TMI 621
Job Work - Hamali work at sugar warehouse for the sugar factory - Nature of services - Manpower Recruitment and Supply Agency Services or Not - Consideration which has to be paid to the appellant is based upon the quantum of work completed and does not indicate any supply of labourers to the sugar factory. - The contract also talks about stitching of sugar bags after transferring the sugar from torn bags of sugar. - Held that:- services rendered by the appellant-assessees do not come under the purview of 'manpower recruitment or supply service' and hence the impugned service tax demands are not sustainable in law. Similarly in the case of other jobs undertaken such as handling of sugarcane or sugar or cleaning or removal of boiler ash, stitching of sugar bags, etc., undertaken by the appellants, these activities also do not come within the purview of 'Manpower Recruitment or Supply Agency service' - Decision in the cases of SATARA SAHAKARI SHETU AUDYOGIK OOS TODANI VAHTOOK SOCIETY [2014 (12) TMI 42 - CESTAT MUMBAI] Ritesh Enterprises [2009 (10) TMI 182 - CESTAT, BANGALORE] followed - Demand set aside - Decided in favor of assessee
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2016 (1) TMI 620
Job work - Nature of activity - Manufacturing activity or Mere supply of labour services - Converting Aluminum Ingots to Aluminum casting - The charges for the job work are based on the quantum of production and not against supply of manpower. - Held that:- The activity remains as production on behalf of the client in the factory of the client. In this fact though the appellant was deputing the manpower but services which carried out were job work in the client's factory, the said activity amounts to manufacture, hence, does not fall under category of Manpower Recruitment Services. Since activity of the appellant amounting to manufacture of the goods, even it is not covered under Business Auxiliary Services, as Manufacturing activity stands excluded in the definition to Business Auxiliary Services.
Even if it is considered as taxable activity, the same is exempted under Notification No. 8/2005-ST dated 1/3/2005. - Demand set aside - Decided in favor of assessee.
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2016 (1) TMI 619
Condonation of delay of 352 days before the first appellate authority - appellant submitted that the earlier counsel, namely, their Chartered Accountant, Amit Garg was not conversant with the service tax provisions and that he handed over the original order to his peon, who kept the same in the file and forgot to file the appeal within time. - Held that:- Inconsistent stand has been taken by the appellant at every stage of the appeal. Three different stands have been taken; first before the First Appellate Authority, then before the Tribunal and now before this Court. It is apparently clear that under the garb of blaming someone else, the appellant is trying to invoke a sympathetic view of the Court to condone the delay. None of the active partner have the gumption to file a personal affidavit before this Court - Condonation denied - Decided against the assessee.
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2016 (1) TMI 597
Demand of service tax on Business Auxiliary services - small scale benefit under Notification No. 6/2005-ST - use of brand name of others i.e Tata Teleservices - Held that:- service has been provided by the appellant to Tata Teleservices and therefore it cannot be said that it provided service to Tata Teleservices in the latter's brand name. Thus the denial of small scale exemption benefit to the appellant is unsustainable.
As regards the incentive received for achieving the targets, it is; not excludible from the assessable value of the service which as per Section 67 is the gross amount received for the service rendered and it cannot be sustainably argued that such incentive would not constitute part of the gross amount recovered as the incentive was with regard to achieving the target for rendering BAS only.
While granted SSI exemption, the issue of valuation decided against the assessee, penalty reduced - Decided partly in favor of assessee.
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2016 (1) TMI 563
Works contract service for pipeline laying for water supply - erection, commissioning or installation of plant etc. - Held that:- Prima-facie, the works executed by the appellant cannot be covered under the category of (a) of works contract service, namely, errection, commissioning or installation of plant and machinery etc.. Considering the detailed findings by the Larger Bench of this Tribunal in the case of M/s Lanco Infratech Ltd, [2015 (5) TMI 37 - CESTAT BANGALORE (LB)], we find that the appellant has made out a case for full waiver of adjudicated demand. - Stay granted.
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2016 (1) TMI 562
Commission agent for ginned cotton - Scope of exemption - agricultural produce or not - Notification No. 13/2003-ST dated 20.06.2003 - business auxiliary services - Held that:- Cotton fibre obtained by ginning cotton plucked from cotton plants is nothing but raw cotton fibre because there cannot be "rawer" form of cotton fibre obtained from "cotton-with-seeds" plucked from cotton plants. We also take note of the exclusionary part of the definition of agricultural produce which states that it "does not include manufactured products such as sugar, edible oils, processed food and processed tobacco" as also of the no-further-processing requirement contained in the said definition and are of the view that holistic, harmonious and fair construction of the definition of agricultural produce leads to the inescapable conclusion that while ginned cotton would be covered within the scope of "raw vegetable fibres such as cotton" and hence qualify to be called "agricultural produce", ginned cotton if subjected to any further processes like carding etc. would get out of the purview of "agricultural produce".
As appellant is a commission agent of ginned cotton, it is eligible for the benefit of Notification No. 13/2003-ST. - Decided in favor of assessee.
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2016 (1) TMI 546
Cenvat credit - input services - installation and erection, maintenance or any other services rendered at Windmills - located away from the factory premises and the electricity generated out of such Windmills is consumed at the factory premises after such power is put through the common grid. - Held that:- Hon’ble Bombay High Court in the case of Endurance Technologies Pvt. Ltd. [2015 (6) TMI 82 - BOMBAY HIGH COURT] held that Cenvat credit is eligible on maintenance or repair services of Windmills, located away from the factory. It is well settled that the decision of Hon’ble High Court is binding on the Tribunal. It was pointed out at the time of hearing that the definition of “input service” credit was subsequently amended in 2011. We find that the present appeals are involving for the period 2006-2007 - Credit allowed - Decided in favor of assessee.
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2016 (1) TMI 545
Export of services - non-receipt of convertible foreign exchange - commission agent services rendered to persons situated abroad - period 01/07/2003 to 19/11/2003 - Business Auxiliary Service - Held that:- the issue is no more res integra as there is no dispute as to the fact that the appellant had undertaken the activities as mentioned herein above for a client situated abroad. The range of services which are rendered by the appellant would fall under the category of “Business Auxiliary Services”, under clause (vii) of provisions of Section 65(19) of the Finance Act, 1994. Yet again, we find that the claim of the appellant that these services are to be considered as export of services is now decided by the Tribunal in various decisions, as correctly pointed out by the learned counsel for the appellant.
A majority view was held in favour of the assesse in a similar situation in a case of Microsoft Corporation (India) Pvt. Ltd. vs. Commissioner of Service Tax, New Delhi [2014 (10) TMI 200 - CESTAT NEW DELHI (LB)] wherein it was held that service rendered for any entity situated abroad in India would be services rendered to that person and can be termed as export of services. The facts of the case in hand are very similar to the two case laws as cited hereinabove. Accordingly, we hold that, on the point of export of service itself, the impugned order is liable to be set aside - Decided in favor of assessee.
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2016 (1) TMI 544
Restoration of appeal - This miscellaneous application is filed seeking recall of the order dt. 18/12/15; seeking condonation of delay that occurred in filing the COD application and pleading reasons for having filed a defective appeal. It is pleaded that there was mere 7 days delay in filing the appeal but a COD application was not filed in advance. The Defect Memo issued by Registry was noticed by some lower official who did not care to inform the concerned officer and thus there occurred a delay in rectifying the appeal. Condonation of delay is also sought on the ground that the appellant is a local authority - The Chittoor Municipality.
Held that:- In the peculiar circumstances, we recall the order dt. 18/02/2015 and restore the appeal. - Delay is condoned on condition that the appellant remits costs of ₹ 2,500/-
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2016 (1) TMI 543
Advance Rulings - Classification of service - Activities of street light maintenance - Scope of Mega Exemption Notification No. 25/2012-Service Tax - Ex-parte decision - Non-appearance of the applicant - it was noted that application seems to have been forwarded through a counsel and even the counsel has not bothered to come before us excepting on one occasion that is 5th August, 2015. - Held that:- One look at the services proposed to be provided as they appear from the application would go to show that this paragraph 13(a) would be wholly irrelevant as the service is not being provided for the maintenance of road, bridge, tunnel etc. It is tried to point out by way of written submissions that the word ‘road’ is a wider term and include street light supporting structure. We do not think so.
As a matter of fact, the word ‘road’ is clear and it can not be substituted by the term street light support structure. The reliance on para 13(a) by the applicant is, therefore, of no consequence. The learned representative of the Department has also correctly argued that there would be no question of applicability of Paragraph 13(a) of the aforementioned Notification. In view of the specific language of the said Paragraph 13(a), we accept the arguments and hold that there will be no question of applicability of para 13(a) of the Notification. - No exemption is available to assessee - Decided against the assessee.
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2016 (1) TMI 484
Waiver of pre-deposit - Tribunal directed the appellant to deposit entire amount of service tax to entertain the appeal - whether the amount of pre-deposit as directed by the Tribunal was unfair and excessive - works contract - contract of cleaning various parts of M/s Guru Gobind Singh Super Thermal Plant - Held that:- Appellant has already deposited 50% of the total tax demand - the present appeal is disposed of by making the interim order dated 15.12.2015 absolute. The Tribunal is directed to hear the appeal on merits without insisting for any further deposit.
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2016 (1) TMI 483
Waiver of pre-deposit - Tribunal directed the appellant to deposit entire amount of service tax to entertain the appeal amounting to ₹ 26,59,784/- - whether the amount of pre-deposit as directed by the Tribunal was unfair and excessive - works contract - contract of cleaning various parts of M/s Guru Gobind Singh Super Thermal Plant - Held that:- appellant has already deposited a further sum of ₹ 6,70,252/-, as per order dated 15.12.2015, the present appeal is disposed of by making the interim order dated 15.12.2015 absolute. The Tribunal is directed to hear the appeal on merits without insisting for any further deposit.
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2016 (1) TMI 482
Restoration of appeal - CESTAT dismissed the appeal for non compliance of stay order - the stay order stood complied with even though there was a delay of five days in depositing the amount? - Held that:- there is a delay of five days in depositing the amount as directed by this Court. The appellant deposited the amount on 5.5.2014 instead of 30.4.2014 due to financial hardship. Examining the factual matrix herein, there appears to be no malafide on the part of the appellant. Thus, keeping in view the totality of facts and circumstances of the case, the delay in depositing the amount is condoned. The appeal filed by the appellant shall be heard on merits by the Tribunal in accordance with law. Consequently, the present appeal stands disposed of. - Decided in favor of assessee.
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