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Service Tax - Case Laws
Showing 41 to 60 of 192 Records
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2016 (11) TMI 1294 - CESTAT MUMBAI
Taxability - contract carriages - rent-a-cab service - 'tour operators' service - Held that: - There is, compelling logic for, by any other interpretation, would render the taximeter cab-driver/operator also liable to tax. That such has been the intent of the legislature appears far-fetched and we hold that vehicles contracted out in return for payment on actual usage is not taxable under section 65 (105) (o) of Finance Act, 1994. Revenue has not appealed the finding that contracting the use of buses does not fall within the ambit of taxation for rendering ‘tour operator’ service - we find no merit in the appeals of Revenue and dismiss them. We find in favour of M/s Rahul Travels, M/s Anay Tours & Travels and M/s Deepak Transport Bus Service and set aside the orders impugned in their appeals.
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2016 (11) TMI 1293 - CESTAT NEW DELHI
Demand - Stock Broker Services - Banking & Other Financial Services - Business Auxiliary Service - Held that: - no service tax will be leviable on transaction charges in the hands of the stock broker
Banking & Other Financial Services - delayed payment charges - Held that: - delayed payment charges received by the stock brokers are not includible in taxable value as the same are not the charges for providing taxable services. Such charges are on account of delay in making payments by the service recipient to the service provider and are in the nature of a penal charge for not making the payment within stipulated time. Such amounts are not includible in the taxable value for charging Service Tax
Business Auxiliary Service - incentive/ commission amounts received by the appellant towards services rendered as Registrar for IPOs - Held that: - Such amounts have been charged to service tax under a new service, "[registrar to an issue]" w.e.f. 01/5/2006. In the impugned order such charges have been levied to service tax under Business Auxiliary Service for the period prior to 01/5/2006. We find no justification for such demands. It is fairly well settled that when a new service is introduced from a particular date, the same activity cannot be charged to service tax prior to that date. The only exception could be if the new service is carved out of an existing service - the service came into service tax net only with effect from 1-5-2006 and a demand to levy the service tax retrospectively under other categories such as Business Auxiliary Service is not justified.
Appeal allowed - decided in favor of appellant.
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2016 (11) TMI 1292 - CESTAT BANGALORE
Imposition of penalty - CENVAT credit - availing of services of foreign company, M/s Granco Clark Inc., USA for maintenance and repair of capital goods installed in the factory at Mysore - suppression of facts - Held that: I find that Section 73(3) is very clear as it says that if tax is paid along with interest before issuance of the show-cause notice, then in that case, show-cause notice shall not be issued. In this case, I find that the contention of the appellant that he bonafide believed that he is not liable to pay service tax but during the audit, the audit party informed him that he is liable to pay service tax, then he immediately paid the entire service tax along with interest. Except mere allegation of suppression, the Department did not bring any material on record to prove that there was suppression and concealment of facts to evade payment of tax. Consequently, in my opinion, the imposition of penalty under Section 78 of the Act is not justified and bad in law. Moreover, in the impugned order, the learned Commissioner (Appeals) has not recorded any finding on suppression of facts by the appellant with an intention to evade tax. In view of the above discussion, I set aside the impugned order.
Appeal allowed - decided in favor of appellant-assessee.
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2016 (11) TMI 1291 - CESTAT MUMBAI
Demand of the amount payable under reverse charge method recovered from the service provider - insurance auxiliary service - demand of the amount of that tax which has, allegedly, been recovered by the appellant from the agent - section 73A of Finance Act, 1994 - reverse charge mechanism - Held that: - The appellant has paid the tax on commission paid to agents on ‘reverse charge’ basis and appellant is, under CENVAT Credit Rules, 2004, entitled to take credit of such tax paid. Contribution, partial or entire, to the tax liability in an agreement with the provider of the service is not forbidden by law. To the extent that the contributor has not ventured to avail credit of such contributions, there is no detriment to public revenue. And to the extent that the appellant has not deprived the provider of the service of any amount in excess of the tax deposited by the appellant, there can be no substance to the allegation that appellant has contravened section 73A of Finance Act, 1994 - appeal allowed - decided in favor of appellant-assessee.
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2016 (11) TMI 1290 - CESTAT NEW DELHI
Demand - construction of residential complex services - Held that: - For the period 01.07.2010 to 31.03.2012, it is seen that the appellant on being pointed by the officers immediately discharged their tax liability along with interest. In as much as the issue of taxability was the subject matter of the Hon’ble High court of Bombay whereas the vires of the same was challenged it can be safely concluded that there was confusion in respect of the taxability of the same. In such a scenario the provisions of section 73B would come into play, thus not requiring any issuance of show cause notice. As such I find no justifiable reasons to impose penalty upon the assessee. Accordingly while confirming tax already paid along with interest I set aside the penalty imposed on the said count.
As regards amount of ₹ 2,52,715/- which appellant collected from their customs for the period 2007-08, the same also stands paid by the assessee subsequently along with interest of ₹ 1,02,722/-. I do not find any merit in the appellant’s plea of bonafide in respect of the said amount in as much as having collected the same in the name of the revenue and having retained the same, definitely reflects upon appellant’s intention of enriching themselves at the cost of Revenue.
While upholding the confirmation of the said demand along with interest, I am of the view that the appellant needs to be penalized on the said count. The penalty of ₹ 10,000/- imposed by the lower authorities under section 77 of the Finance Act is accordingly upheld. The appeal is disposed off.
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2016 (11) TMI 1231 - CESTAT NEW DELHI
Enhancement of penalty under Section 76 of the Act - jurisdiction of Commissioner of Service Tax - Section 84 of Finance Act - the adjudication order was challenged before the learned Commissioner (Appeals) by the appellants and the appeal was pending before the learned Commissioner (Appeals) - Held that: - As per Section 84 (4) of the Finance Act, 1994 no order under this Section shall be passed by the Commissioner of Service Tax in respect of any issue if an appeal against such issue is pending before the Commissioner of Service Tax (Appeals) . On plain reading of the above said provisions it is clear that if the adjudication order has been challenged before the learned Commissioner (Appeals), the learned Commissioner of Service Tax seized his power to review the adjudication order. As appellant has challenged the leviability of penalty itself, therefore, question of enhancement of penalty does not arise - the Commissioner of Service Tax ceased to have this power to review the adjudication order under Section 84 of the Finance Act, 1994.
Appeal allowed - decided in favor of appellant-assessee.
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2016 (11) TMI 1230 - CESTAT AHMEDABAD
ROM application - principles of natural justice - Held that: - a mistake apparent on record must be an obvious and patent mistake and the mistake should not be such which can be established by a long drawn process of reasoning - power to rectify a mistake should be exercised when the mistake is a patent one and should be quite obvious - while rectifying a mistake, an erroneous view of law or a debatable point cannot be decided.
We do not find any error, much less apparent error in the subject order - ROM application dismissed.
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2016 (11) TMI 1229 - CESTAT AHMEDABAD
Levy of penalty u/s 76 and 78 of the Finance Act, 1994 - taxability of Sale of Space or Time for Advertisement - Service Tax was introduced on the said category with effect from 01.5.2006 - doubt as regards taxability of the service - section 80 - whether imposition of the appellant u/s 76 and 78 of the FA, 1994 needs to be upheld or the Appellant made out a case for invoking of Section 80 of the FA, 1994? - Held that: - the appellant sought opinion from the reputed Chartered Accountant ie., M/s Talti & Talati with regard to the liability of the Service Tax on “Sale of Space or Time for Advertisement” levied for the first time with effect from 01.5.2006. On receiving a categorical opinion of non-applicability of Service Tax, they did not discharge the Service Tax. However, subsequently, on further inquiry from other sources/consultants they realized their mistake and discharged the entire amount of Service Tax alongwith interest on 05.7.2007 pertaining to the period of 01.5.2006 to 30.6.2007. Their Claim is that this argument even though advanced before the authorities below, but not considered. I find that undisputedly, the appellant is a public sector undertaking and also the amount of Service Tax due for the period of 01.5.2006 to 30.6.2007 has been paid by them after realization of the fact that the service rendered by them become leviable to service tax w.e.f 01.05.2005. Initial non payment of tax was due to a bonafided mistake and the mistake was attributed to the opinion rendered by a reputed Chartered Accountant firm M/s Talati & Talati. Thus, in my opinion, the reasons cited by the appellant for their initial failure to discharge Service Tax during the said period seems to be reasonable warranting invocation of Section 80 of the FA, 1994 - penalty set aside - appeal allowed - decided in favor of appellant-assessee.
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2016 (11) TMI 1159 - CESTAT CHANDIGARH
Cenvat credit - process of heat treatment - job work - as the appellants are clearing their final product on payment of service tax as also without payment of service tax, they are entitled to use only 20% of the credit so availed - whether the only objection of the Revenue is the appellants should not have taken the Cenvat credit on its own and should have filed refund claim, justified? - Held that: - From the letter dtd. 30.06.09, I find that a proper intimation was given to the Asstt. Commissioner and the said letter also discloses the discussion between the appellant and the Asstt. Commissioner. It is also written in the said letter that Asstt. Commissioner was kind enough to permit the appellants to take the credit. Revenue is not disputing that the said letter was filed by the appellants. If that be so, the permission of the Asstt. Commissioner is deemed to have been granted during the personal discussion between the appellant and the Asstt. Commissioner. I find no reasons to direct the appellants to deposit any part of demand or the penalty imposed - I have already held the Asstt. Commissioner having granted the permission during discussion amounts to grant of permission by the Revenue for claiming the refund. In any case, taking of credit back on deposit of tax amount in cash is only a book adjustment and Revenue is not disputing that such re-credit was available to the appellants otherwise on merits - appeal allowed - decided in favor of appellant.
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2016 (11) TMI 1158 - CESTAT AHMEDABAD
Demand - GTA service - Rule 2(d) of Service Tax Rules 1994 - Held that: - the person who pays or liable to pay freight either himself or through his agent for the transportation of such goods, and satisfy the conditions prescribed in (a) to (g) of Clause (v), are liable to discharge the Service Tax. In the present case, there is no dispute of the fact that the freight charge was initially paid by the consignor but later recovered it from the appellant by issuing debit note - the liability rests on the consignors as they had discharged the freight charges. In the result, I do not find any merit in the impugned order - appeal allowed - decided in favor of appellant.
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2016 (11) TMI 1157 - CESTAT HYDERABAD
Levy of penalty - service tax not discharged in time - BAS - Non-registration of appellant - Held that: - reliance placed on the decision of the case of the case of CCE&ST LTU, Bangalore Vs. Addecco Flexione Workforce Solutions Ltd. [2011 (9) TMI 114 - KARNATAKA HIGH COURT] where it was held that The assessee has paid both the service tax and interest for delayed payments before issue of show cause notice under the Act. Sub-Sec.(3) of Sec. 73 of the Finance Act, 1994 categorically states, after the payment of service tax and interest is made and the said information is furnished to the authorities, then the authorities shall not serve any notice under Sub-Sec.(1) in respect of the amount so paid.
The imposition of penalty in the present case is unsustainable - appeal allowed - decided in the favor of appellant.
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2016 (11) TMI 1142 - CESTAT HYDERABAD
Demand - whether the appellant is eligible for cum-tax benefit - TV/Radio programme production service - Section 73(3) of the Finance Act, 1994 - Held that: - On perusal of the ledger account produced by the appellant and comparing with the invoices, it is noted that the appellant has received amount as stated in the invoices. This reveals that the appellant has not collected any separate amount as service tax. Therefore the case of the appellant that the amount collected included the service tax portion also needs 'to be analysed. view thereof} the matter needs to be remanded to the original authority to consider the issue whether the appellant is eligible for cum-tax benefit on the three invoices referred above. The appellant is at liberty to furnish any further evidence to establish his case which shall be considered by the adjudicating authority. the result, impugned order is set aside and remanded for denovo adjudication - appeal allowed by way of remand.
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2016 (11) TMI 1118 - CESTAT HYDERABAD
100% EOU - refund claim for un-utilised CENVAT credit - back office operations - product support - technology infrastructure and design services - alleged input services do not have nexus with the output services - Held that: - reliance placed on the decision of the case of M/s Reliance Industries Ltd [2016 (8) TMI 123 - CESTAT MUMBAI] where it was held that all these services are eligible for credit. Therefore, the rejection of refund on the ground that the input services do not have nexus with the output service, is not legal or proper.
The second ground for rejection is that the appellant has not established one-to-one correlation with the input services and the exports. The Board vide letter DOF.No.334/1/2012-TRU, dated 16-03- 2012 has stated and clarified that the new scheme of refund does not require the correlation between exports and input services used in such exports.
The rejection of refund is unjustifiable - appeal allowed - decided in favor of appellant.
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2016 (11) TMI 1113 - CESTAT HYDERABAD
Tax evasion - non-registration and non-submission of returns - maintenance or repair service - Imposition of penalties - benefit u/s 80 invoked - Held that: - It emerges that the lower appellate authority has properly analysed the issue at hand and given a well reasoned finding and conclusion that penalties could be waived under Section 80 ibid, therefore I do not find any legal infirmity in the orders of the lower appellate authority. He has also conducted denovo proceedings in the matter as directed in earlier Tribunal order dated 21.10.2010 - penalties waived - appeal dismissed - decided against Department.
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2016 (11) TMI 1112 - CESTAT CHANDIGARH
Demand - With effect from 1.6.2007, the appellant got registered under work contract service and paying service tax on the amount of services provided by them except for the services provided in the State of Jammu and Kashmir. It was alleged that the appellant had provided taxable services during period from 1.6.2007 to March, 2010-11 - Held that: - I hold that for the period post 1.6.2007, if any unpaid demand is found against the appellant under the category of 'work contract service,' the same shall be payable by the appellant. Further, the services provided in the State of Jammu & Kashmir post 1.6.2007, no service tax is payable. The matter is remanded back to the adjudicating authority for calculation of the demand and thereafter issue a demand notice to the appellant within 30 days from the receipt of this order. If there is any outstanding demand, the same shall be payable by the appellant alongwith interest and penalty to the extent of 25% of the service tax payable - appeal allowed by way of remand.
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2016 (11) TMI 1111 - CESTAT HYDERABAD
Classification of services - storage and warehousing services, supply of manpower, Rent-a cab Services - classifiable under Cargo Handling Services or GTA services - Held that: - At this preliminary stage, we do not think that the appellant has made out a prima facie case for full waiver of pre-deposit. We therefore direct the appellant to deposit 25% of the tax demand which in our view would suffice the pre-deposit envisaged under section 35F for considering the stay application. The appellant is directed to deposit 25% of tax demanded (Rs. 20,45,779/-) within a period of 4 weeks and report compliance on or before 21.9.2016; on failures to deposit or report compliance, the appeal will stand dismissed for non-compliance without further notice.
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2016 (11) TMI 1110 - CESTAT HYDERABAD
Levy of tax - operator of COCO retail outlets of M/s Bharat Petroleum Dealers - Business Auxiliary Service - Held that: - It is submitted by the appellant in the grounds of appeal that, if the reimbursable expenses are taken into consideration then, the demand of service tax would be much below the threshold level. Taking into consideration this ground submitted by the appellant as well as the fact that the department has withdrawn their contest on the demand, interest, penalty and appeal filed by department having been dismissed, the appeal No.ST/27877/2013 filed by assessee is allowed - decided in favor of assessee and against Department.
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2016 (11) TMI 1109 - CESTAT MUMBAI
Imposition of interest and penalty - Section 35F of the Act - pre-deposit - Held that: - where the duty and penalty are under dispute 7.5% of only duty amount has to be deposited in order to file the appeal before this Tribunal. In case only penalty is under dispute then 7.5% of the penalty amount is required to be deposited, in the present case there is a dispute of interest and penalty. As per the plain reading of the Section 35F of the Act, in the present case also only 10% of the penalty is required to be deposited for filing an appeal which the applicant have already deposited. As regards the contention of the ld. AR that 7.5% of interest should also be deposited, I completely disagree with this contention for the reason that Section 35F of the Act, does not envisage for deposit of 7.5% or as the case may be 10% of interest amount. Therefore, in my considered view the applicant is not required to deposit any amount towards interest. The applicant have deposited 10% of the penalty amount therefore, the appeal is liable to be admitted. In this situation, there is no need of filing any stay application. The appeal is admitted. The stay application is dismissed as infructuous.
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2016 (11) TMI 1108 - CESTAT MUMBAI
Penalty - Construction of a ‘jetty’ - bonafide belief - Service Tax liability with interest having been discharged - Held that: - the appellant had declared receipt of payment and claimed the said payment as received for exempted services, there could be a bonafide belief that tax liability does not arise - No penalty - Decided in favor of the assessee.
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2016 (11) TMI 1107 - CESTAT MUMBAI
Whether the appellant are liable to pay service tax on GTA service from cash or from their Cenvat Credit account or otherwise for the period prior to 1.3.2008? - Held that: - From the Explanation, which was inserted vide Notification No. 28/2012-CE(NT) dt. 20.6.2012 (w.e.f.1.7.2012), the utilization of Cenvat Credit has been barred for payment of service tax by the service recipient where the service tax is payable under reverse charge mechanism. This bar was not existing at the relevant time that is during the period October, 2007 to February 2007 involved in the present case. In view of the above, the impugned order is not sustainable, hence the same is set aside. The appeal is allowed.
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