|
Advanced Search Options
Service Tax - Case Laws
Showing 101 to 120 of 192 Records
-
2016 (11) TMI 700 - CESTAT HYDERABAD
Works contract service - modification of the stay order - power of Tribunal under statute to pass an order when there are change of circumstances - Held that: - the services carried out by the appellant during the period of dispute are indeed in the nature of works contract services. It is also seen that the nature of their work, in relation to construction of port or other port, are fully exempted from the whole of service tax leviable thereon right from 07-06-2005 till date, by a series of notifications. In fact it is interesting to note that after bringing Works Contract Service into the tax net vide Section 65(105) (zzzza) of the Finance Act, 1994, notification 25/2007-ST dated 22-05-2007 had incorporated "services provided in relation to execution of a works contract', for exemption from service tax liability, in relation to construction of a port or other port services - the activities contracted and carried out by the appellant are very much in the nature of works contract services in relation to construction of port or other port - the said activities are fully exempted by service tax all through the period of dispute 'by virtue of series of exemption notifications - for period after 01-06-2007 the works contract services provided by appellant continue to be exempt from service tax liability in view of aforesaid exemption notifications - appeal allowed.
-
2016 (11) TMI 699 - CESTAT HYDERABAD
Levy of service tax - canal project viz., Flood Flow Canal Project - N/N. 41/2009-ST dated 23.10.2009 - Held that: - Following the judgment laid in Lanco Infra Tech Ltd. [2015 (5) TMI 37 - CESTAT BANGALORE (LB)] case, where it was held that Where under an agreement, whether termed as works contract, turnkey or EPC, the principal contractor, in terms of the agreement with the employer/ contractee, assigns the works to a sub-contractor and the transfer of property in goods involved in the execution of such works passes on accretion to or incorporation into the works on the property belonging to the employer/ contractee, the principal contractor cannot be considered to have provided the taxable (works contract) service enumerated and defined in Section 65(105)(zzzza) of the Act. - this Bench has remanded the matter to adjudicating authority. Therefore, in the light of the decision laid in Lanco Infra Tech as well as the decision of Tribunal in the above stated final order we remand this matter to the adjudicating authority - appeal allowed by way of remand.
-
2016 (11) TMI 649 - CESTAT ALLAHABAD
Export of services - Business Auxiliary Service - input services - time bar - deployment of staff - Held that: - as the appellant has several employees and the availability of same in good health for rendering the output service, is essential for carrying on their business or providing output service as a BPO. In this nature, of activity the employees form the backbone of the organization for providing the service. Accordingly, it is essential for the appellant/assessee to ensure the availability of their personnel for providing service. Accordingly, to ensure that their personnel and staff are in good health for providing the output services, the appellant having used the services of doctors and nurses which may not be available otherwise at odd hours and may effect the performance of output services by their staff. Accordingly, I hold that such services received by the appellant is an essential input service for providing their output services as a BPO which is a taxable service. Further, there is no dispute by Revenue that the service tax have not been charged and not paid on the same.
Cleaning service - Held that: - I hold that the same is an essential service for any business organization including that of the appellant. Clean office premises is definitely required for efficient working and to ensure good health of the management and staff of the organization. Accordingly, I hold the cleaning services are eligible input service for providing output service.
Appeal allowed - decided in favor of appellant.
-
2016 (11) TMI 648 - CESTAT AHMEDABAD
Demand - CHA services - non-inclusion of certain expenditures amounting to ₹ 94,05,527/- in the gross taxable value - Section 84 of the Finance Act, 1994 - Held that: - ld. Commissioner at Para 32 of the impugned order has observed that there was no time for verification of the data submitted by the appellant as the review notice ought to be decided on or before 10.02.2010 and proceeded to adjudicate the Notice issued by him in exercise of power vested under Sec. 84 of Finance Act,1994. In these circumstances, as both sides fairly agree, in the interest of justice, it would be prudent to remit the case to the ld. Commissioner to decide the issues afresh, after considering all the evidences on record and the evidences that would be filed by the appellant before him. Needless to mention, a reasonable opportunity of hearing be allowed to the appellant to explain their case. All issues are kept open - Appeal is allowed by way of remand.
-
2016 (11) TMI 647 - CESTAT MUMBAI
Demand - services of financing, merger and acquisition - whether taxable under the head of Management Consultancy Services? - time bar - suppression of facts - Held that: - the show cause notice was issued on 10/4/2006 invoking extended period. At the time of issuance of show cause notice, unamended provisions of Section 73(a) existed prior to 10/9/2000 was not existing, therefore unamended Section 73(a) is not invokable in the present case. If this is so then the appeal of the Revenue which solely on the basis of this ground does not survive. As per amended provision of Section 73, extended period can be invoked only when there is suppression of facts. In the present case even in the Revenue’s appeal there is no charge of suppression of facts and infact respondent informed the department about their service activity of merger and acquisition therefore extended period was not invokable, the Ld. Commissioner(Appeals) has rightly dropped the demand on limitation.
As regard the merit of the case, we find that services undisputedly are of financing, merger and acquisition, these services were specifically brought in the definition of banking and financial services w.e.f. 16/7/2001 therefore during the period 1999-2000 these services were not taxable in other heads.
Appeal dismissed - decided against Revenue.
-
2016 (11) TMI 646 - CESTAT MUMBAI
Rectification of mistake - services of transmission of financial messages through swift services - telecommunication services - Held that: - detailed order was passed by which the service was held to be classifiable under the category of "Banking and Other Financial Services". Once by detailed findings, the tribunal concluded that the services is classifiable under banking and other financial services, there is no purpose to discuss that whether the claim of the appellant on the services of telecommunication services is correct or not. Therefore by classifying the services in question under banking and financial services it stands concluded that the telecommunication services as claimed by the appellant is not relevant.
Time bar - Held that: - the fact and circumstances of the present case as well as case of the bank of Baroda are absolutely identical. In the bank of Baroda case which was solely relied upon in this case, in para 7.6 it was clearly discussed that even though the penalty is not imposable under section 80 but as per first proviso to Section 73 which is independent to Section 80, extended period can be invoked. As per our above discussion, we find that applicant could not make out the case for rectification of mistake in the order as no mistake is apparently arising out of such order. We therefore dismiss the ROM application
-
2016 (11) TMI 645 - CESTAT MUMBAI
Taxability - Operation and maintenance of power plant - Held that: - reliance placed in the decision of the case CMS Operation and Maintenance Co. Pvt Ltd. Vs. CCE [2007 (5) TMI 74 - CESTAT, CHENNAI] where it was held that Charges for operation of plant is not liable to service tax under the head of Management, Maintenance or Repair Service - activity of operation of plant does not fall under category of taxable service in the head of management, maintenance and repair service.
The agreement of operation of plant is neither involved in any management of either plant or maintenance or repair. Entire plant was taken over by the appellant for operation. Therefore the same does not fall under Management, Maintenance or Repair service - Appeal allowed - decided in favor of appellant.
-
2016 (11) TMI 644 - CESTAT MUMBAI
Demand - Rent-a-Cab - Penalty - Held that: - there is no dispute that the Service Tax along with interest was paid by the appellant before issuance of show-cause notice, there is no contest on the said payment - if the assessee pays all the Service Tax along with interest and without any contest the Department is not supposed to issue any show-cause notice - Decided in favor of the assessee.
-
2016 (11) TMI 643 - CESTAT MUMBAI
Restoration of appeal - Condonation of delay - Held that: - I find that this Tribunal has passed the order without representation or without appearance on behalf of the appellant despite the adjournment request which was not recorded. Further on going through the finding of the Ld. Commissioner (Appeals), I find that the Ld. Commissioner (Appeals) has taken the date of dispatch of the order as a date of communication. The Ld. Commissioner also admitted that the appeal was filed against the order copy issued by the department on request of the appellant. However, the delivery of the order dispatched on 18.4.2013 and acknowledgement thereof has not been verified by the Commissioner (Appeals), therefore merely by taking the date of dispatch as the date of communication of the order does not appear to be proper. Since the vital aspect has not been properly considered, the appeal deserves to be restored. Therefore the appeal is restored in its original number. Accordingly, the stay application and COD are also restored. Registry is directed to list the matter in due course.
-
2016 (11) TMI 642 - CESTAT MUMBAI
Receipt of income on account of Hotel Booking - ‘Business Auxiliary Service’ - whether a service is a tour operator service or otherwise, that is if the permit of the vehicle is contract carriage permit issued under Section 2(43) of Motor Vehicle Act, 1988 and as per the said Section the specification of the vehicles must be in terms of Rule 128 of Central Motor Vehicle Rules 1989? - Held that: - in order to classify the service under ‘Tour Operator’, it is necessary that the vehicle should be tourist vehicle in terms of Section 2(43) of the Motor Vehicle Act, 1988 read with Rule 128 of the Central Motor Vehicles Rule 1989. From the orders of both the lower authority, it is observed that they have not verified and given any finding on this vital aspect, therefore the matter needs to be reconsidered by the appellate authority.
On the issue of quantification of demand on the ground raised by the appellant that they have not provided the tour operator service during the period 2000-01 and 2001-02 and the tax liability if any arise, it must be limited for the period 2002-03 and 2003-04 which comes to ₹ 1,12,046/-. On this issue though the appellant have made a categorical submission and the same was recorded by the Ld. Commissioner, but no finding was given, therefore this issue also needs reconsideration - the impugned order set aside and the matter remanded to the Commissioner (Appeals) for reconsideration of the entire matter taking into consideration our above observations - appeal allowed - matter remanded.
-
2016 (11) TMI 641 - CESTAT MUMBAI
Confirmation of tax levied on commissions from banks and financial institutions - restoration of penalties - ‘business auxiliary service’ - reliance placed on the decision of case of South City Motors Ltd v. Commissioner of Service Tax [2011 (11) TMI 408 - CESTAT, NEW DELHI] where it was held that the entries for “Business Auxiliary Service” and “Business Support Service” have different objects. After the introduction of the new entry, there can be argument as to which entry covers the activity more appropriately - The Higher Courts have been taking the view that in such situations the extended period of time cannot be invoked for raising demand.
Held that: - the impugned order has erred in setting aside the tax demand of ₹ 20,72,830/- for providing ‘business auxiliary services’ under section 65 (105) (zzb) of Finance Act, 1994. However, that amount has been paid before the issue of show cause notice. It is settled by the above decisions that the lack of clarity in the tax leviable under section 65 (105) (zzb) would detract from the liability to be imposed with penalties under the Finance Act, 1994. We find that the present issue is also one such.
Tax on commissions from banks and financial institutions confirmed - penalties set aside - appeal disposed off - decided partly in favor of Revenue.
-
2016 (11) TMI 588 - CESTAT BANGALORE
Rejection of Refund claim - time bar - SEZ unit - banking and other financial services - limitation of time to file the refund claim of service tax under Notification No.09/2009-ST dated 3.3.2009 - Held that: - The discretionary powers given to the Assistant Commissioner has to be exercised by application of mind to the facts of the case. When the delay in filing the claim is sought to be condoned by the claimant, the competent Officer (here Assistant Commissioner) has to examine and decide whether such delayed claim can be accepted. The reasons for the same or for rejecting the request for condonation are to be recorded. There is no provision to have two separate proceedings in such cases viz., first to decide on delay/request for condonation and then on the refund claim per se. Both can be taken together and decided. This is done in various such situations in cases where delayed appeals etc., are taken up for decision.
Rejection of refund claim justified - appeal dismissed - decided against appellant.
-
2016 (11) TMI 587 - CESTAT CHANDIGARH
CENVAT credit - renting of immovable property - rule 2(1) of the CCR, 2004 - CBEC circular 98/1/2008-ST dated 04.01.2008 - Whether the cenvat credit on construction services is available to the appellant or not? - Held that: - reliance placed in the decision of the case COMMR. OF C. EX., VISAKHAPATNAM-II Versus SAI SAHMITA STORAGES (P) LTD. [2011 (2) TMI 400 - ANDHRA PRADESH HIGH COURT] where it was held that unless excluded, ail goods used in relation to manufacture of final product or for any other purpose used by a provider of taxable service for providing an output service are eligible for CENVAT credit - assessee used cement and TMT bar for providing storage facility without which storage and warehousing services could not have been provided - the appellant has correctly taken the cenvat credit to the tune of ₹ 20,84,900/- on construction services. Accordingly the same is allowed.
Imposition of penalty - Held that: - During the period April' 2009 to March' 2010 there was a stay on the levy of service tax under the category of renting of immovable properties services which is ultimately paid by the appellant alongwith interest. Further, the issue is pending before the Hon'ble Apex Court. In that circumstance, I hold that no penalty is imposable on the appellant - appeal allowed - decided in favor of appellant.
-
2016 (11) TMI 586 - CESTAT MUMBAI
Demand - sale of liquor in terms of para 10.5 of Board Circular dated 27/7/2005 - Held that: - I find that sale figure was taken from the balance sheet and VAT payment documents and they have also submitted some sample invoices towards sale of liquor and Ld. Commissioner(Appeals) considering all these evidences with C.A. certificate came to the conclusion that there is indeed the sale of liquor which according to para 10.5 of Board Circular 27/7/2005.
For dropping of demand the Commissioner(Appeals) has considered sufficient evidences such as sale bills, balance sheet, C.A. certificate and VAT statements submitted to the Sales Tax Department therefore I am of the view that Ld. Commissioner (Appeals) has applied his mind rightly in dropping demand after establishing that there is sale of liquor and no service tax can be demanded on such sale. Therefore I do not find any infirmity in the Ld. Commissioner’s(Appeals) order which is therefore upheld. Revenue’s appeal is dismissed
-
2016 (11) TMI 585 - CESTAT MUMBAI
Levy of penalty - bonafide belief - nonpayment of service tax on due date - Held that: - As per the section 73(3), if the service tax either ascertained by the assessee or by the departmental officer and the same is paid alongwith interest, no show cause notice is required to be issued. I find that from the fact and the action of the appellant the case is clearly covers under Section 73(3). I have gone through judgments relied upon by both sides. Since the fact for imposition of penalty under Section 78 or to deal the case under provisions of Section 73(3) facts of individual case has to be ascertained therefore fact of each judgments varies from the fact of the present case, hence in my view as per facts of the present case these judgments are not applicable. As per my above discussion, I find that appellant’s case is covered by provision of Section 73(3) and also under Section 80 of the Finance Act, accordingly penalty is set aside, service tax along with interest admittedly paid by the appellant is maintained. Appeal is allowed in the above terms
-
2016 (11) TMI 584 - CESTAT MUMBAI
Demand - business auxiliary services - processing disposable waste water and releasing the same through common drainage into common effluent treatment plant will amount to services rendered to a client for processing of goods? - Held that: - It is also to be noted and is a common knowledge that disposal of waste water in the common effluent treatment plant of Maharashtra pollution control board, needs to adhere specifications acceptable for such disposal, which are achieved by the treatment undertaken by the appellant. We notice that treatment of effluent waste cannot be considered as processing of the goods by any stretch of imagination, and we also note that the show cause notice does not invoke specific clause of the definition of Business Auxiliary Services for levy of tax - Impugned order is set aside and appeal is allowed.
-
2016 (11) TMI 583 - CESTAT MUMBAI
Renting of immovable property services - Section 65 (104) (zzzz) of Finance Act, 1994 and Finance Act, 2010 - discharge of service tax on demand, but interest not paid - Held that: - it mandates about recovery of service tax, interest, or penalty a fine or other charges which may not have been collected. As against such as specific clause which provides for recovery of interest, nothing survives in this appeal filed by the assessee for non-recovery of interest by the adjudicating authority. We do not find any reason to interfere in adjudicating authority’s order for recovery of interest from the appellants - The appeal filed by the appellant to that extent is rejected. In view of the foregoing, the impugned order to the extent it confirms the demand of service tax liability and interest thereof is upheld and the appeal is disposed of.
-
2016 (11) TMI 582 - CESTAT ALLAHABAD
Rejection of refund claim - section 11B of the Central Excise Act, 1944 - time bar - Held that: - the relevant date for the purpose of Section 11B for the purpose of Refund of accumulated Cenvat Credit is not the date when service is provided but the date on which payment for service provided is received in foreign exchange. As submitted by ld. Counsel for appellant and taking the date of foreign exchange receipt into consideration in both the appeals as relevant date both the claims for refund were filed within the period of limitation of one year. Therefore I hold that both the applications for refund of accumulated Cenvat credit filed on 9.5.2014 and 29.8.2014 are within the period of limitation - rejection of refund not justified - appeals allowed.
-
2016 (11) TMI 581 - CESTAT ALLAHABAD
Levy of tax - construction of residential complex - The grounds of appeal, inter alia, including that the certificate dated 04.12.2010 issued by Ghaziabad Development Authority to the effect that the complex is being constructed by respondent to this appeal are 54 staff quarters does not clearly indicate as to for whom Ghaziabad Development Authority is getting them constructed whether for themselves or for any other agency. Therefore, said certificate is not concrete evidence. Further, the Revenue has raised another ground that in the case of clarification issued by CBEC dated 24.05.2010, Government of India was service receiver and Ghaziabad Development Authority is not government and the staff quarters are whether for government staff or not on that there is no factual evidence.
-
2016 (11) TMI 580 - CESTAT ALLAHABAD
CENVAT credit - output service of maintenance and repair - Held that: - We find that going by the wording of the said Notification No.12/2003, there is no requirement of payment of VAT to become eligible for exemption in respect of said goods for availing the benefit of Notification No.12/2003. The notification provides that there should be documentary proof indicating the value of the goods sold so as to avail benefit of exemption of such value from the assessable value for arriving at service tax. This crucial aspect was not properly understood by the Original Authority. We, therefore, hold that the requirement of actual payment of VAT is not to be taken into consideration for extending the benefit of said Notification No.12/2003, but it is only to be examined whether documentary proof indicating the value of goods sold, is available on record to extend the said benefit.
Further, the Original Authority has not taken into consideration the provisions of Rule 6(3) of Cenvat Credit Rule 2004, that existed during the material period allowing the Cenvat Credit to the appellants. So, we direct Original Authority to re-adjudicate the matter taking into consideration the documentary proof of sale of goods and taking into consideration the provisions of said Rules 6(3) available during the material period. With these directions, we remand the matter back to the Original Authority by setting aside the Order-in-Original. The issue of limitation is kept open to be examined by the Original Authority. The appeal is allowed by way of remand.
....
|
