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Service Tax - Case Laws
Showing 21 to 40 of 192 Records
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2016 (11) TMI 1449 - CESTAT CHENNAI
CENVAT credit - input services - co-ordination fees paid by appellant - Held that: - It cannot be disputed that in any organization, whether a manufacturing unit or service provider, repair and maintenance are vital for ensuring smooth functioning of the manufacture or business - This being the case, and also considering that they do not feature in the exclusions, impugned services will very much be in the nature of eligible ‘input service’ for the purpose of Rule 2(l) ibid - credit allowed - appeal allowed in toto.
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2016 (11) TMI 1448 - CESTAT CHENNAI
CENVAT credit - inputs - inputs services - Exposy Coating, Floor coating or Floor Material - Wall panel, Ceiling panel - Gauges rack - Tools rack - Trolley - Held that: - as regards Exposy Coating, Floor coating or Floor Material, and Wall panel, Ceiling panel, the services availed was to make the environment dust-free, which is one of the requirement of the Factories Act, 1948. Therefore, denial of the Cenvat credit of the tax paid is uncalled for.
Gauges rack - Tools rack - Trolley - Held that: - it is probably considered by the adjudicating authority as not capital goods. These Gauges Racks are purchased for the purpose of storage and need not be considered as capital goods and being integraly connected with the manufacturing activity, these are recurring expenditures to hold such goods as input on the facts of the present case and that is not unreasonable - same reasoning applies for Tools rack and Trolley.
The word “include” is used in the statutory definition generally to enlarge the scope and meaning of the words used in law without restriction - appeal allowed - decided in favor of appellant.
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2016 (11) TMI 1447 - CESTAT NEW DELHI
Consulting engineer’s services - appellant provided technical assistance for preparation of detailed project reports for water shed development and received payments against such services provided by it - Held that: - Professionally qualified engineer or any other firm, who renders any advice, consultancy or technical assistance in one or more disciplines of engineering, falls under the purview of the definition of “consulting engineer”, contained in Section 65(31) ibid - Since the word “or” is finding place in the definition between ‘professionally qualified engineer’ and ‘engineering firm’ and the appellant being an engineering firm, is falling under the purview of the said taxable service for the purpose of payment of service tax - demand upheld.
Penalty - Held that: - appellant was under the bona fide belief that only services provided by a professionally qualified engineer should attract payment of service tax - penalties set aside by invoking section 80.
Appeal allowed - decided partly in favor of appellant.
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2016 (11) TMI 1446 - CESTAT BANGALORE
100% EOU - Management, Maintenance or Repair service - Business Auxiliary Service (BAS) - Information Technology Services (ITS) - nonpayment of service tax - Held that: - as regards Management, Maintenance or Repair (MMR) Service, the present issue is a debatable one and differing view-points have been expressed in the decisions of the Tribunal as well as various higher judiciary, we are of the view that the demand under this category should only be confirmed within the normal period of limitation - the matter is remanded to the original adjudicating authority for purpose of quantification of demand.
Business Auxiliary Service (BAS) - supply of the software to the foreign customers and transfer of the licence - the assessee pays to the subsidiaries/sub-contractors, the relevant charges - reverse charge mechanism - Held that: - If such an arrangement is to be placed within India, it would be a case of levy of service tax under BAS. However, since the service has been carried out on foreign soil, we need to examine the law from the perspective of whether assessee is liable to pay service tax under BAS on reverse charge basis, in terms of Section 66A of the Act, read with Taxation of Services (Provided from Outside India and Received in India) Rules, 2006 - In the instant case, the recipient (assessee) of service (BAS) is in India. The service have been provided by the subsidiaries/sub-contractors, who stand paid by the assessee. The instant case is, therefore covered for demand of service tax under BAS on reverse charge basis under Section 66A of the Act read with the said Rules - However, when we look at the nature of the service rendered abroad, we find that it is in the nature of Information Technology Service (ITS). There was an exclusion for ITS from the definition of BAS which was deleted only with effect from 16-5-2008 when the service of ITSS was introduced in the statute. Consequently, there can be no demand for service tax under BAS up to 15-5-2008. Consequently, demand is upheld under BAS only from 16-5-2008 and the matter is remanded to original authority for requantification of demand..
Whether in the present case, if the assessee pays the service tax demanded, the same will be available to themselves by way of Cenvat credit - revenue neutrality - Held that: - Since neither of the services is in the nature of input service, Cenvat credit will not be allowable to the assessee even if the service tax is paid. Consequently, the plea of revenue neutrality merits rejection.
Penalty u/s 76, 77 and 78 - Held that: - there is no justification for imposition of any penalty on the assessee, keeping in view of the fact that levy of service tax on Information Technology Software Service was newly introduced with effect from 16-5-2008 only.
Appeal allowed in part and part matter on remand.
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2016 (11) TMI 1445 - CESTAT HYDERABAD
Benefit under N/N. 33/2011-S.T., dated 25-4-2011 - commercial coaching or training services - Held that: - N/N. 10/2003-S.T. is granted to taxable services provided to any person by a commercial coaching or training which form an essential part of a course or curriculum of any other Institute or establishment, leading to issuance of any certificate or diploma or degree or educational qualification recognized by a law - the respondent has been granted approval for one time affiliation to Jawaharlal Nehru Technological University (JNTU). In the circumstances, the Commissioner (Appeals) has correctly concluded that the appellant would fall under the RFC degree issued by the respondent, which is recognized by the UGC - benefit allowed - appeal dismissed - decided against Revenue.
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2016 (11) TMI 1441 - CESTAT HYDERABAD
Abatement - GTA Services - N/N. 32/2004-S.T., dated 3-12-2004 and N/N. 1/2006-S.T., dated 1-3-2006 - Board’s Circular No. B1/6/2005-TRU, dated 27-7-2005 - Held that: - the respondents are entitled to avail benefit of exemption vide the notifications subject to fulfillment of conditions prescribed therein - As per Board’s Circular No. B1/6/2005-TRU, dated 27-7-2005, the declaration by service provider in all such cases on the consignment note, to the effect that the conditions of the notification have been satisfied would be sufficient to avail the benefit - abatement allowed - appeal dismissed - decided against Revenue.
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2016 (11) TMI 1440 - CESTAT NEW DELHI
Refund of service tax - N/N. 41/2007-S.T., dated 6-10-2007 - denial on the ground that appellant was not in possession of the service tax code at the time of applying for the refund - Held that: - It is on record that the appellant had already applied for such code number along with the application for refund claim. It is entirely the fault of the Department in not allotting the code within the period of 7 days as is mandatorily required - this cannot be held as a reason against the appellant in rejection the refund claim - refund allowed - appeal allowed - decided in favor of appellant.
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2016 (11) TMI 1439 - MADRAS HIGH COURT
Liability of service tax - petitioner was a successfull bidder in the auction held on 10-5-2012 for collection of toll amount - Held that: - The learned counsel for the petitioner would further submit that pursuant to the present demand dated 1-4-2013, the petitioner had submitted a reply on 8-4-2013 stating that he is not liable to pay the service tax - the respondent is directed to take up the petitioner’s reply dated 8-4-2013 and pass suitable orders in accordance with law within a period of four weeks - petition dismissed - matter on remand.
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2016 (11) TMI 1438 - CESTAT BANGALORE
100% EOU - Refund claim - input services - Shipping Services - Insurance Services - rejection also on the ground of time limitation - Held that: - the amount of ₹ 2,15,319/- claimed as refund for the month of September, 2008 was hit by limitation of time - there is no infirmity with regard to this effect in the impugned order.
With regard to the refund of cenvat credit of Shipping Services, I feel that there is no infirmity in the impugned order as the same does not fall in the definition of ‘input services’.
Insurance Services - Held that: - the same are neither connected with the manufacturing activity nor included in the input service definition because the service is used to ensure the manufactured goods till the port or till the destination as per the terms agreed with the buyer of the goods and the appellant has not been able to produce what are the terms with the buyer - there is nothing wrong in the findings returned in the impugned order.
Appeal dismissed - decided against appellant.
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2016 (11) TMI 1437 - MADRAS HIGH COURT
Principle of patent illegality - GTA services - whether the claimant is liable to pay service tax, as per the terms of the contract? - Held that: - Clause 21 of the contract provides that service tax/sales tax applicable if any, on chartered hired payments received by the contractor under this contract will be to the account of ONGC. It also further provides that service tax if any applicable and/or levied on charter hire payment against this contract/agreement will be reimbursed by ONGC at actual against documentary evidence. Therefore, for the charter hire payment charges, ONGC has to bear service tax as per the above Clause 21 of the Contract.
The Tribunal rejected the contention of the ONGC that the service comes under Goods Transport Agency pointing out that as per the definition under Section 65(50b) of the Finance Act, 1994, the service provider should not only transport goods by road but also issue consignment note. The Tribunal also pointed out that the claimant had never issued consignment note and the consignor as well as the consignee in the transport is only ONGC and therefore, ONGC alone is liable to pay service tax if payable. Thus the Tribunal decided the nature of transaction only to conclude whether the claimant is liable to pay as per the terms of the contract and it has not gone into the question whether transaction under the contract is amenable for service tax or not.
Appeal dismissed - decided against appellant.
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2016 (11) TMI 1414 - CESTAT, CHENNAI
Condonation of delay of 370 days in filing appeal - delay on the ground that the original order meant for appeal was misplaced by clerical staff - Held that: - It does not appeal to common sense as to how the order giving raise to consequences under law was carelessly misplaced and the attitude of the appellant shows that it was not at all conscious to have regard or respect to law. Such a careless attitude never permits a negligent appellant to receive any leniency under law - For no good reason stated and the reason stated being not appreciable and also not appealing to common sense, delay not condoned - appeal dismissed - decided against appellant.
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2016 (11) TMI 1386 - CESTAT CHENNAI
CENVAT credit - Outward transportation service - eligible input service or not? - Held that: - appellant had not produced any documentary evidence in support of their contention that ownership and property of the goods cleared by them remained with them till delivery of same at buyer's end and that freight and insurance charges were borne by them - proper course in this appeal is to remand the matter for de novo consideration - penalty set aside - appeal allowed by way of remand.
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2016 (11) TMI 1363 - CESTAT NEW DELHI
Service tax liability - commission paid to the foreign commission agents - reverse charge mechanism - period 18.04.2006 to 31.02.2007 - Held that: - the Bombay High Court in the case of Indian National Shipowners Association [2008 (12) TMI 41 - BOMBAY HIGH COURT], clarified the law by their judgement dated 11.12.2008. We agree with the ld. Advocate that prior to declaration of law by the Hon’ble High Court, there was utter confusion in the field and the law got settled only with the said judgement. The period involved in the present case is admittedly prior to the said decision of the Hon’ble Bombay High Court and we find that the appellant deposited the dues on 23.03.2009 i.e. within a period of 3 weeks of declaration of law by the Bombay High Court. We also take note of the decision referred supra, wherein in an identical situation, the provisions of Section 80 were invoked and the benefit was extended to the appellant. Accordingly, we hold that in absence of any malafide on the part of the appellant, the imposition of penalty upon them is not justifiable, the same is accordingly set aside. The demand as also interest stands confirmed as not contested.
Appeal disposed off - decided in favor of assessee.
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2016 (11) TMI 1355 - CESTAT NEW DELHI
Waiver of pre-deposit - Club Association service - Renting of immovable property service - Health Club fitness service - Development & Supply of Content service - GTA service - IPR service - Held that: - prima facie, the demand made in club and association services to the tune of ₹ 1.41 crores is covered by decision of Hon'ble High Court of Gujarat in the case of Sports Club of Gujarat Ltd, Vs. UOI [2013 (7) TMI 510 - GUJARAT HIGH COURT], in favour of the applicant. In respect of the various other services like renting of immovable property as well as GTA services we find that significant amount already stands deposited. Considering overall demand, we are of the view that the amounts already deposited would suffice for the purpose of hearing the present appeals.
We waive the requirement of the balance amount of service tax demanded, interest thereon and on the penalty till the disposal of the appeal - stay granted
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2016 (11) TMI 1354 - CESTAT NEW DELHI
Whether the activity of construction of residential complex by the respondent, in terms of agreement entered into with M/s. Jindal Power Ltd, for the occupation of flats by their employees, would attract Service Tax liability under the category of ‘construction of residential complex’ or not? - Held that: - Reference can be made to the decision of Tribunal in the case of Commissioner of Central Excise, Aurangabad vs. Mall Enterprises [2015 (11) TMI 333 - CESTAT MUMBAI] as also to the decision in the case of Nithesh Estates Ltd. vs. CCE & ST & Cus., Bangalore [2015 (11) TMI 219 - CESTAT BANGALORE], where it was held that From the definition it is quite clear that if the complex is constructed by a person directly engaging any other person for design or planning or layout and such complex is intended for personal use as per the definition, service tax is not attracted. Personal use has been defined as permitting the complex for use as residence by another person on rent or without consideration.
Appeal rejected - decided against Revenue.
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2016 (11) TMI 1353 - CESTAT NEW DELHI
Imposition of penalties u/s 76 and 77 of the FA, 1962 - taxability - reverse charge basis - As per facts on record, the appellant availed the services of foreign commission agent for procuring their orders from various Customers. With the insertion of section 66A in the Finance Act effective from 18.4.2006, the appellant was required to pay the service tax on such services, so received by them, on reverse charge basis - Held that: - I find that whatever Service tax was required to be paid by the appellant, was available to them as cenvat credit. As such, the entire situation is revenue neutral, in which case, no malafide can be attributable to the appellant. Accordingly, I am of the view that imposition of penalty upon them are not justifiable. The same are accordingly, set aside while upholding the service tax and interest as not challenged - appeal allowed - decided in favor of assessee.
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2016 (11) TMI 1352 - CESTAT HYDERABAD
Refund claim - accumulated service tax paid for various input services - export of services without payment of tax - Scientific or Technical Consultancy Services - Held that: - the credit has been allowed on various services following the decisions as held in various cases, except for fleet management services/ Rent-a cab services.
The appellant has claimed refund of credit of service tax paid on Rent-a cab services. The appellant has changed the nomenclature of the services from Rent-a-cab service to Fleet Management Services. Such change of name will not make the appellant eligible for credit because the services are used after 01.04.2011. The definition of input services expressly excludes Rent-a cab service and the appellant has not adduced evidence to prove that how they are eligible for credit on such service. Therefore the claim of credit in respect of Rent-a cab service is disallowed. In regard to other services, I hold that they qualify as input services and therefore are eligible for credit. The appellant having produced sufficient details with regard to the service provider and ISD challans and after verification as conceded by the Ld. AR, I hold that this issue is clarified and solved in favor of assessee.
Appeal allowed - decided partly in favor of appellant.
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2016 (11) TMI 1351 - CESTAT NEW DELHI
Levy of tax - transport of goods by air - the chargeability of service tax on the amount collected from passengers as charges for transportation of their ‘excess baggage’ by the appellant Airline during the period of 10.9.2004 to 13.09.2006, when the service of ‘Transportation of Passengers by Air’ was not under taxable category - Held that: - carrying excess baggage on payment of certain fee/tariffs for the passengers who have opted to use air services of the appellant is an integral part of the main service provided by the appellant. The incidental service of ‘transportation of excess baggage by air’ cannot be charged service tax under the category of service of ‘transportation of goods by air’ as defined under Section 65 (105) (zzn) of the Finance Act, 1994, CESTAT Mumbai in the case Kingfisher Airlines Ltd. Vs. Commissioner of Service Tax, Mumbai [2015 (11) TMI 54 - CESTAT MUMBAI (LB)], where it was held that The excess baggage charges collected by the appellants are an integral part of the main service namely transportation of passengers by air. Therefore, the demand of service tax is set aside.
Appeal allowed - decided in favor of appellant.
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2016 (11) TMI 1350 - CESTAT NEW DELHI
Refund claim - N/N. 41/2012 ST - export of services - GTA services - Held that: - The Notification No. 41/2012-ST has been issued in terms of Section 93A of the Finance Act, 1994. The notification provides for grant of rebate by way of refund of the service tax paid on the specified services used for export of goods. It is nobody’s case that the GTA services for which the appellant has claimed rebate of service tax under the notification has not been used for export of goods. Consequently, there is no doubt that the appellant falls within the gamut of the notification whose stated purpose is to grant refund of service tax on services used for export.
It is not in dispute that the service tax was paid by the appellant and such services have been used for export of the goods by the appellant. Consequently, I am of the view that rebate under Notification No. 41/2012-ST is required to be paid to the appellants - appeal allowed - decided in favor of appellant-assessee.
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2016 (11) TMI 1349 - CESTAT KOLKATA
Imposition of penalty u/s 78 - imposition of simultaneous penalty after amendment - section 76 - Held that: - Section 78 has been amended w.e.f. 16/5/2008 according to which simultaneous penalties under Section 76 and 78 of the Finance Act, 1994 cannnot be imposed. In the present case the show cause notice is issued on 11/12/2008 which is after the amendment of Section 78 of the Finance Act, 1994. Therefore, it is held that penalties under Section 78 of the Finance Act, 1994 are not attracted when Section 76 penalty has been imposed upon the appellant.
Penalty under Section 78 of the Finance Act 1994 is not sustainable when penalty under 76 of the Finance Act is already paid by the appellant - appeeal allowed - decided in favor of appellant.
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