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Service Tax - Case Laws
Showing 181 to 192 of 192 Records
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2016 (11) TMI 60 - CESTAT MUMBAI
Drilling and waste removal - whether the activity falls under the category of Site Formation service? - Held that: - there is no dispute as to the fact that the contract which has been awarded to appellant was in respect of the drilling and removal of waste rock material from the site wherein Manganese Ore India Ltd., Jain Carbide and RBS & Co. were intending to do mining of manganese ore. We find that the first appellate authority as well as the adjudicating authority has correctly held that this activity of the appellant would get covered under the category of Site formation service. There is nothing on record to controvert such finding of the first appellate authority as well as the adjudicating authority.
Reliance placed on the decision of case Avtar & Company [2014 (2) TMI 1130 - CESTAT MUMBAI] where it was held that activity undertaken of the similar nature would fall under Site formation service.
Extended period of limitation - Held that: - the appellant had himself taken the registration under the category of Site formation service but did not indicate the turnover which is attributable to the site formation services. This itself calls for invocation of extended period.
Appeal rejected - decided against appellant.
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2016 (11) TMI 59 - CESTAT MUMBAI
Refund claim - exemption under N/N. 17/2009-ST dated 7/7/2009 - Airport Services - Held that: - the ATF was supplied which was treated as exports during the period July, 2009 to March, 2010 and the Airport services which is input service was received by the appellant during the same period. The Airport service was not covered under exemption notification no. 17/2009-ST dated 7/7/2009. It is important to note that this Notification exempt the services specified in the notification by way of refund. Therefore the exemption is available in the hands of the recipient. However, service provider in the present case is MIAL suppose to discharge the service tax - point of time of exemption under notification No. 17/2009-ST is time when services were received and used in export of the goods. In the present case receipt of the service as well as use in the exports of goods have taken place during the July, 2009 to March, 2010, at that material time there was no exemption provided to Airport service under notification no. 17/2009-ST, the exemption was made applicable to the airport service under notification no. 17/2009-ST only by amending notification no. 37/2010-ST w.e.f. 28/6/2010 i.e. much after the period of refund in the present case of the appellant. Therefore it is clear that exemption to Airport service by way of refund was not available during the period July, 2009 to March, 2010.
Limitation bar - refund pertaining to the period 7/7/2009 to 27/7/2009 - Held that: - as per condition (c) of para (1) of the Notification No. 17/09-ST, one of the important condition is that payment of service tax should be made by the service recipient, therefore before complying this condition refund does not arise - for services pertaining to the period 7/7/2009 to 27/7/2009 the service provider MIAL raised bills itself on 10/8/2009 therefore it is obvious that payment for said period was made after raising bill by MIAL. For this period refund claim was filed on 27/7/2010 which is well within the one year therefore refund is not time bar.
Board Circular No. 354/256/2009-TRU dated 1/1/2010 - the same is not dealing with the issue in hand. It does not deal with the issue that even if the input service is not specified in the notification refund can be granted therefore circular will not apply in the facts of the present case.
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2016 (11) TMI 58 - CESTAT MUMBAI
Restoration of appeal - stay and waiver of pre-deposit u/s 35F of Central Excise Act, 1944 - modification in the terms of pre- deposit? - Held that: - even though the decision of the Tribunal, viz., Petronet LNG Ltd v. Commissioner of Service Tax [2013 (11) TMI 1011 - CESTAT NEW DELHI], may not favour Revenue, but that would be subject to the requirement that the appeal stands restored. The judgments cited by the learned Authorised Representative Adison Textiles Pvt Ltd v. CESTAT [2007 (9) TMI 606 - ALLAHABAD HIGH COURT] would place the applicant within the ambit of the amended provisions of section 35F of Central Excise Act, 1944. The pre-deposit mandated in section 35F of Central Excise Act, 1944 is the same as that directed by this Tribunal on the earlier occasion. We, therefore, do not find any justification for modifying the terms of pre-deposit. The applicant is directed to deposit ₹ 5 crores within eight weeks and report compliance thereafter latest by 15th November 2016 following which the appeal will stand restored and the plea for raising additional ground sought for in the application shall be taken up thereafter - appeal disposed off.
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2016 (11) TMI 57 - CESTAT MUMBAI
Extension of stay order - appeal has not come up for disposal for no fault of appellant - Whether from the initial grant of stay and extension thereof, which is in force beyond 7.8.2014, whether any application is required to be considered by the Bench for extending stay order; on the fact of omissions of 1st, 2nd and 3rd proviso to Section 35C(2A) of the Central Excise Act 1944 - Held that: - relianceplaced in the decision of the case M/s. Venketeshwara Filaments Pvt. Ltd. & Ors. Vs. C.C.E. & S.T., Vapi [2014 (12) TMI 227 - CESTAT AHMEDABAD] where it was held that stay order passed by this Tribunal, if it is in force beyond 7.8.2014, it would continue till the disposal of the appeals and there is no need for filing any further applications for extension orders granting stay either fully or partially - as the stay in the present case was in force beyond 07.08.2014, the same would continue till the disposal of the appeal - extension of stay order granted - the application for extension of stay is disposed off - decided in favor of applicant.
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2016 (11) TMI 56 - CESTAT HYDERABAD
Classification of the service - re-rubberisation of old and worn out Rollers - Held that: - the issue is similar to the case of Zenith Rollers Ltd. Vs. CCE Noida [2013 (12) TMI 620 - CESTAT NEW DELHI] and the decision followed, where it was held that the activity undertaken (re-rubberisation of old and worn out Rollers) would fall under Business Auxiliary Service and exempted from payment of tax in terms of Notification No. 14/2004.
Appeal allowed - decided in favor of appellant.
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2016 (11) TMI 55 - CESTAT MUMBAI
Small service provider - Eligibility for exemption under N/N.6/2005-ST - ‘Goods Transport Agency’ service - ‘Renting of Immovable Property Services’ - threshold limit - Held that: - The clause of Notification No. 6/2005-ST as amended would be applicable in as much as, the said notification exempt the Service Tax liability on the small scale service providers, if the value of clearance is up to ₹ 10,00,000/-. It is the case of the assessee that during the relevant period, they received amount raised, it was the first year of renting out of the premises. We find that the notification in Clause 3 and explanation to clause 3 clearly indicates that aggregate value would mean some total gross value of receipt during the financial year, as prescribed under Section 67 of the Finance Act, 1994 charged by the service provider towards taxable services.
The appellant had received only an amount of ₹ 10,22,656/- bifurcation of which for the period 01.06.2007 to 31.03.2008 is ₹ 6,39,160/- and for the period 01.04.2008 to 30.09.2008 is ₹ 3,83,496/-. It can be seen from the above factual matrix that the appellant have not received any excess of amount of ₹ 10,00,000/- in earlier years and accordingly entitled for benefit of Notification No. 6/2005-ST - appeal allowed - decided in favor of appellant.
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2016 (11) TMI 23 - CESTAT BANGALORE
Interest on delayed refund - banking and other financial services - discount/commissions received by the appellant from the merchant establishments in connection with credit card transactions liable to payment of service tax and tax paid upon the same - refund claimed afterwards, refund was allowed - whether the appellant is entitled to get interest on delayed refund? - Section 11BB - Held that: - the issue stands decided in the case of Ranbaxy Laboratories Ltd. vs. UOI & Ors. [2011 (10) TMI 16 - Supreme Court of India] where it was held that liability of the revenue to pay interest under Section 11BB of the Act commences from the date of expiry of three months from the date of receipt of application for refund under Section 11B(1) of the Act and not on the expiry of the said period from the date on which order of refund is made.
The appellant eligible for interest from the date of expiry of the period of three months from the date of filing of the refund claim till the date of payment of refund - appeal allowed - decided in favor of appellant.
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2016 (11) TMI 22 - CESTAT BANGALORE
Levy of tax - activities of cash management - Business Auxiliary Service - Section 65(19) of the Finance Act, 1994 - demand of interest u/s 75 and imposition of penalties - The Banking and Other Financial Services (BOFS) was included in the statute w.e.f 16.7.2001 under Section 65(12), however, the definition as it was initially introduced specifically excluded cash management services. The definition of scope of BOFS was further amended w.e.f 1.6.2007 when cash management service was specifically included under Clause (v). It is also on record that from 1.6.2007, the appellant has been discharging service tax liabilities under BOFS. Revenue authorities have taken a view that for the period prior to 1.6.2007 such services would be covered by BAS - whether the Revenue's view justified?
Held that: - The deletion of the exclusion of cash management services is w.e.f 1.6.2007. The issue whether for the period prior to this date, such services can be charged to service tax under BAS stands decided by the Hon’ble Apex Court in the case of CST vs. M/s. Federal Bank Limited [2016 (3) TMI 354 - SUPREME COURT] where it was held that Clause (12) of Section 65 covers all charging services rendered by the Banks. - when cash management services stood excluded from the purview of service tax at the hands of the Bank until 31.05.2007, the authorities cannot levy service tax on an activity which is essentially cash management service, by taking aid of other general charging heads, such as business auxiliary service.
Service tax not levied - appeal allowed - decided in favor of appellant.
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2016 (11) TMI 21 - CESTAT ALLAHABAD
Connivance with service provider for evasion of service tax - availing inadmissible CENVAT credit - Manpower or Supply Agency Services - Extended period of limitation - demand of duty with interest - imposition of penalty - Held that: - the Show Cause Notice did not bring forward any evidence to establish that there has been collusion between the appellant and the service provider for evasion of Service Tax and for availing inadmissible Cenvat credit. Therefore, the invocation of extended period in the said Show Cause Notice is not sustainable. We, therefore, hold that the said Show Cause Notice, so far as, relates to denial of Cenvat credit to the appellant, imposition of penalty on appellant, proposal for imposition of penalty on its Authorized Signatory & proposal of demanding interest from the appellant is unsustainable. We, therefore, modify the impugned Order-in-Original to the extent that the demand confirmed in respect of Cenvat credit of ₹ 3,32,76,600/- is set aside, order for recovery of interest on the said demand is set aside, imposition of penalties set aside - appeal allowed - decided in favor of appellant.
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2016 (11) TMI 20 - CESTAT MUMBAI
Maintainability of appeal – limitation - order not communicated to the concerned person - mode of communication of order - Section 37C (1) (A) of the Act - service of order by speed post is not a valid service - reliance placed on the decision of AMIDEV AGRO CARE PVT LTD Versus UNION OF INDIA AND OTHERS [2012 (6) TMI 304 - BOMBAY HIGH COURT] where it was held that As per Section 37C(1)(a), it was mandatory on the part of the Revenue to serve a copy of the order of Commissioner of Central Excise (Appeals) by registered post with acknowledgment due to the assessee. - Held that: - in the case of Amidev Agro Care Pvt. Ltd. the communication dispatched by speed post was not received by the appellants whereas in the instant case it has been admitted by the appellant that the communication was received by them, although it was received by watchman and it was not delivered to the concerned people at the right time. Once it is admitted that the order has been received by the appellant, the decision of Hon’ble High Court of Bombay in the case of Amidev Agro Care Pvt. Ltd. can be differentiated on fact. The mode of communication of order is relevant only so long as the actual receipt of the communication is not disputed. Once the receipt of communication is not disputed, the mode of communication becomes irrelevant - the appeal dismissed - decided against appellant.
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2016 (11) TMI 19 - CESTAT MUMBAI
Levy of tax - services of ‘Promotion and Marketing’ of Car Loan and Personal Loan - Direct Sales Agent - whether the services will fall under the head Business Auxiliary services, which have been introduced from 1/7/2003 and the tax to be levied on the said service? - Held that: - decision in the case of Bridgestone Financial Services Vs. Commr of S.T. Bangalore [2007 (1) TMI 67 - CESTAT, BANGALORE] followed as well as Board Circular dated 16/11/2006 relied upon where it has been settled that service provided by the appellant to HDFC bank is classifiable as Business Auxiliary Services and liable for service tax.
Time bar - as per the confusion and doubt prevailing in respect of impugned service, the appellant entertained the bonafide belief that whethe any service provided to HDFC bank is classifiable under Business Auxiliary services or Business Support Services. As regard the Business Support Service it became taxable only from 1/5/2006, even there were some judgments wherein it was held that the identical services is of Business Support Service therefore it cannot be said that the appellant has intentionally avoided the payment of service tax. The issue was not free from doubt as even the board also realized and issued a circular dated 6/11/2006 by which it was clarified that the services in question will fall under the category of Business Auxiliary Services and thus it is taxable - due to interpretation of classification of services extended period cannot be invoked - It is settled law that where in the case, the issue involved is of interpretation of law, the extended period cannot be invoked.
The period involved is July,2003 to May, 2005 whereas the show cause notice was issued on 29/5/2006. As per the discussion made herein above extended period cannot be invoked therefore service tax demand upto March 2005 is hit by limitation therefore demand pertaining to the period July, 2003 to March , 2005 deserves to be set aside. As regard the demand for the period April and May, 2005 in respect of services provided to HDFC bank towards promotion and marketing of loan under Business Auxiliary Services, the same requires re-quantification on the ground that Adjudicating authority has not conclusively established that what is the actual receipt of service charges by the appellant during the period April, 2005 and May, 2005.
Sales commission on vehicle - N/N. 14/2004-ST dated 10/9/2004 - Held that: - the appellant is proprietary concern therefore they are prima facie eligible for above referred exemption notification as the services is covered under ‘provisions of services on behalf of client’ which is one of the services specified under the notification. However Ld. Adjudicating authority has not given any findings as regard the claim of this notification categorically made by the appellant before him - eligibility of this Notification should be re-considered by the Adjudicating authority - As regard the penalties imposed under Section 76, 77 and 78, we find that as per our above discussion on limitation, there is bonafide belief of the appellant for non payment of service tax, the appellant has been able to reasonable cause for invocation of Section 80 - the demand being time bar penalties under Section 76,77 and 78 require to be set aside invoking Section 80.
Appeal disposed off - decided partly in favor of appellant.
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2016 (11) TMI 18 - CESTAT MUMBAI
Demand of service tax - imposition of interest and penalties - advertising services - Held that: - As regard the tax liability of the services, we find that services provided by the appellant are indeed taxable and the same is liable for service tax. As regard the penalties under Section 76, 77 and 78, we find that the appellant though not discharged service tax in due time but they have been paying service tax in installment and almost entire demand was paid before issuance of show cause notice. The appellant given reason for non payment of service tax in time that they were in severe financial crisis. It is also fact that appellant had accounted for entire service tax payable as an outstanding in their books of accounts which shows that they had bonafide intention to discharge the service tax. Even if the service tax was collected but shown as a outstanding in the balance sheet, it can be construed that appellant had no malafide intention - appellant showed the reasonable cause for non payment of service tax on due time. Interest on the said service tax also paid by the appellant separately as per the direction of this Tribunal - appellant entitled for waiver of penalty under Section 76,77 and 78 in terms of Section 80 of the Finance Act, 1994, therefore penalties set aside - demand of tax with interest maintained - appeal disposed off - decided partly in favor of appellant.
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