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Service Tax - Case Laws
Showing 61 to 80 of 192 Records
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2016 (11) TMI 1007 - ALLAHABAD HIGH COURT
Appeal filed under Section 35-G of Central Excise Act, 1944 - time bar - levy of service tax on the appellant, although payment was received before 1.7.2003, when the service was not taxable under the Finance Act, 2003 - Held that: - the question of limitation has been decided in favour of the assessee by the Ist Appellate Authority. The department thereafter went in appeal but the Tribunal has not addressed this issue at all and has proceeded to decide the matter on merits of the case. The issue of limitation definitely requires reconsideration by the Tribunal. The matter is remanded to the Tribunal for reconsideration of this issue. The Tribunal shall hear and decide the matter on merits and in accordance with law within the next three months and a copy of this order be produced before the Tribunal within the next 15 days - appeal disposed off - matter on remand.
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2016 (11) TMI 1006 - KERALA HIGH COURT
Constitutional validity of levy of service tax on restaurants - Validity of sub clause (zzzzv) of clause 105 of Section 65 of the Finance Act, 1994 - Legislative competency of Parliament - Sale of food and drinks - Whether "taxes on the sale and purchase of goods" in Entry 54 of List II of the seventh schedule covers service in the light of the definition of "tax on sale and purchase of goods" under Article 366 (29A) (f) of the Constitution of India - Held that: - reliance placed on the judgment of this Court in Kerala Classified Hotels and Resorts Association v. Union of India [2013 (7) TMI 431 - KERALA HIGH COURT] - That was a case relating to charge of service tax on air conditioned restaurants where they were vending liquors and has licence to serve liquor. Since this case also stands in the same footing, I am of the view that the judgment in Kerala Classified Hotels (supra) applies to the fact situation of the present case also - the matter is pending before the Supreme Court. Further, no stay has been granted in the matter. Therefore, right now, I am inclined to follow the law laid down by this Court and accordingly, this writ petition is allowed. The declaration sought for is granted and service tax already collected shall be refunded to the respective parties.
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2016 (11) TMI 1005 - CESTAT NEW DELHI
CENVAT credit - telephone services - input service - leased circuit services - Held that: - This is the second round of litigation. In the earlier round of litigation this Tribunal directed the Adjudicating Authority to decide the issue of limitation but the same was not considered. As the facts and records are available before us, therefore, we are having the privilege to decide the issue of limitation. As admitted that the appellant had filed Cenvat credit returns regularly and the same was received by Revenue and in the knowledge of the Department, therefore, the show cause issued for invoking extended period of limitation is not sustainable - We also find that on the issue of valuation on account of sim-card was also being dispute and the same was decided by the Apex Court in Idea Mobile Communications Ltd. [2011 (8) TMI 3 - SUPREME COURT OF INDIA], therefore, extended period of limitation is not invokable during the impugned period.
Demand set aside - appeal allowed - decided in favor of appellant.
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2016 (11) TMI 1004 - CESTAT NEW DELHI
Demand u/s 65(19) of the Act - levy of tax - commission/brokerage received - Business Auxiliary Service - Held that: - We find that the services rendered by the assessee are in the nature of advice given to their clients for finding the means and sources of fund of business and negotiating the arrangements of the same for use in the business of their clients. It is noteworthy that this activity is not relatable to any goods or services of the clients. Such activities will not bring the assessee within the definition of Commission Agent as given above. Consequently, the assessee cannot be held to have rendered any service under the category of BAS - reliance placed on the decision of the case of Fulchand Tikamchand Vs. CCE, Nagpur [2016 (2) TMI 772 - CESTAT MUMBAI] where it was held that the appellant has acted as a broker and made available the details of financiers to potential operators. The Tribunal held that such an activity will not bring the assessee under the commission agent.
Tax not leviable - appeal dismissed - decided against Revenue.
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2016 (11) TMI 1003 - CESTAT NEW DELHI
Recovery of refund granted - N/N. 41/07-ST dated 6.10.2007 - the taxable service namely, Terminal Handling Charges is not confirming to the port service and GTA Service availed for movement of export cargo from place of removal to the port of export prior to 19.02.2008 is not available for refund in terms of the above referred Notification - Held that: - the services towards terminal and other handling services were availed b the assessee within the port area, in connection with export of the goods. Thus, irrespective of classification of service, since the same are provided within the port for export of goods, the benefit of refund should be available under the head Port Service in terms of notification dated 06.10.2007. In this context, the Tribunal in the case of SRF Ltd., [2015 (9) TMI 1281 - CESTAT NEW DELHI] have held that irrespective of the classification of service, if the services are provided within the port, the same should qualify as port service for the purpose of benefit of refund. Thus, I am of the view that the assessee is eligible for refund of ₹ 16,72,923/-
With regard to GTA service availed for transportation of goods from the place of removal to the port of export, I find that the refund claim was filed after issuance of the Notification No. 3/2008 dated 19.02.2008. I also find that in an identical situation, this Tribunal in the case of East India Minerals Ltd. [2012 (8) TMI 22 - CESTAT, KOLKATA] has allowed the refund claim to the appellant.
As regards testing and analysis service, I find from the available records that the appellant had entered into the agreement with the overseas buyer for providing such service. Since, the agreement was in existence exist before exportation of goods, I am of the view that the requirement of Notification dated 06.10.2007 has been duly complied with by the assessee, for which refund claim cannot be denied
There is correlation between the movement of goods from the place of removal to the port of export. However, I find that the assessee has not produced the copies of the agreements entered into between it and the overseas buyers. Since the contents of the agreements have to be verified by the Original authority, I am of the view that the matter should go back to the original authority for verification of the agreements - appeal allowed by way of remand.
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2016 (11) TMI 1002 - CESTAT MUMBAI
Service tax liability - manpower recruitment and supply agency service - Held that: - appellant is a charitable trust who is executing a contractual obligation to M/s Loknete Baburao Patil Sahakari Sakhar Karkhana Ltd., for carrying out the activities of harvesting and transportation of sugar cane on behalf of sugar cane producers and are paid consideration by the sugar factory. It is the finding of adjudicating authority that the payment received by appellant is taxable under the category of “manpower recruitment and supply agency services”.
The issue is no more res integra as the Hon'ble High Court of Bombay in the cases CCE v. Shri Samarth Sevabhavi Trust & Ors. [2015 (3) TMI-1170 (Bom)] on identical set of facts upheld the order of the Tribunal that these kind of services are not covered under the category of “manpower recruitment and supply agency services”.
Appeal allowed - decided in favor of appellant.
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2016 (11) TMI 940 - CESTAT CHENNAI
CENVAT credit - rental services - eligible input services - Held that: - I find that the appellant has availed the credit of service tax paid under “Renting of immovable property service”, being rent paid for the premises at Tamil Nadu Warehousing Corporation for undertaking the manufacturing processes and the resulted goods were returned to the appellant’s factory and cleared on payment of duty. It is also not disputed that the service provider has discharged service tax liability on renting of immovable property. Both unit-1 and unit-2 share some legal entity and the intermediate products are received back by unit-1 for the manufacture of final products. Therefore, renting of immovable property is having direct nexus in the manufacture of final products at unit-1. Rule 2(l) of CCR, 2004 clearly mentions that the service utilised in or in relation to the manufacture of final products is eligible as an input service. Hence, the benefit of Cenvat credit on input service cannot be denied to the appellant - appeal allowed.
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2016 (11) TMI 939 - CESTAT MUMBAI
Refund claim - N/N. 12/2005-ST dated 19.04.2005 - rebate of the whole of Excise duty on excisable inputs or the whole of the Service Tax on the services used of providing taxable output service which is exported - non-filing of requisite declaration with the Assistant or Deputy Commissioner of Central Excise - Held that: - the appellant had filed the refund and rebate claim on 1st May, 2009 which is within time and they filed declaration as required under N/N. 12/2005-ST subsequently i.e. on 7th May, 2009 i.e. before the adjudication order was passed. We find from the records that both the lower authorities have not considered the issue of eligibility of the refund claim and have rejected the refund claim only a procedural lapse. The Tribunal in the case of Manubhai & Co. Vs. CST, Ahmedabad [2010 (9) TMI 294 - CESTAT, AHMEDABAD] and Kothari Infotech Ltd. vs. Commissioner of Central Excise, Surat [2013 (8) TMI 800 - CESTAT AHMEDABAD] considered the same issue and held that filing of declaration under N/N. 12/2005-ST is merely a procedural requirement, and if there is any delay and same can be condoned and the refund claim is to be processed if otherwise eligible. The ratio of decision of the Tribunal is squarely applicable in this case. Accordingly, we set aside the impugned order, holding that the filing of declaration is a procedural requirement which is condoned and the lower authorities are directed to process the refund claim on its merits in accordance with law.
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2016 (11) TMI 938 - CESTAT MUMBAI
Service Tax liability - Goods Transport Agency Services - delivery of food grains as per direction of the District Supply Officer/District Collector, Latur, under P.D.S. scheme - Held that: - respondent issues periodical bill and it is not consignment note or billtees which is primary requirement to classify the activity under Goods Transport Agency as a taxable service. We perused the sample copy of invoice issued by respondent and found that these invoices are in form No. 2, a form prescribed by Government of Maharashtra, by any stretch of imagination cannot be considered as consignment note. This factual matrix is not contested by the Revenue in ground of appeal.
The issue is now squarely covered by the judgments of the Tribunal Nandaganj Sihori Sugar Co. Ltd. Vs. CCE, Lucknow [2014 (5) TMI 138 - CESTAT NEW DELHI] - the impugned order is correct, legal and does not suffer from any infirmity. The appeal filed by the Revenue is rejected and cross objection filed by the respondent being in support of the impugned order is also disposed of.
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2016 (11) TMI 937 - CESTAT MUMBAI
Service tax liability - Business Auxiliary Service - non-declaration of the correct value of an amount received from one of the clients as commission - imposition of penalty u/s 78 of the Finance Act, 1994 - Held that: - the appellant has admitted to short payment of the service tax liability and has paid the tax amount on being pointed out by the audit officers except for a small amount of ₹ 2.15 lakhs which was also paid off after issuance of show-cause notice. At this juncture we find that the contest in the appeal before us is only for the penalty imposed and as upheld. We find from the records that the appellant’s conduct prior and post to the period in question by discharging his service tax liability in time was being of a good assessee. There could be a bonafide error on the appellant’s part of not declaring the amount of ₹ 3.05 crores as the commission received in the ST return, but it is also undisputed that the said amount has been declared in the balance sheet as receipts. In our view this plea of the appellant that there was a bonafide error in not recording the amount in the ST-3 return is seems to be acceptable. In the facts and circumstances of this case, by invoking the provisions of Section 80 of Finance Act, 1994, we set aside the penalty imposed by the adjudicating authority under Section 78 of Finance Act, 1994 - appeal disposed off.
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2016 (11) TMI 936 - CESTAT MUMBAI
Classification of services - commercial and industrial construction service - business support service - rent-a-cab service - manpower recruitment and supply service excluded from the trifurcation of services - eligibility for escapement on the basis of the instruction - Held that: - The adjudicating authority, while invoking section 80 of Finance Act, 1994 to drop the proposal for imposing penalties under section 76 and 78 of Finance Act, 1994, did not record reasonable cause for failure to pay the duty. The reasons cited would make it appear that the invoking of section 78 in the notice had no justification at all. If that were so, the resort to extended period for confirming tax liability is without basis. There is an apparent contradiction here. We also notice that noticee had made only partial payment of admitted tax liability.
Considering the lacunae in the impugned order and that remedying of these lacunae will require re-examination of the submission of the noticee with reference to documentary evidence, we are of the opinion that the matter should be remanded back to the original authority for fresh consideration of all aspects. As the matter has been pending in adjudicatory and appeal process for almost seven years, the original authority is directed to complete the proceedings within three months of receipt of this order - appeal disposed off - matter remanded back.
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2016 (11) TMI 935 - CESTAT MUMBAI
Revision - Section 84 of the Finance Act, 1994 - SSP - Held that: - I find that once the Commissioner has passed the revision order, the order of the adjudicating authority does not exist. Now as per the submission of the Ld. Counsel, I find that the appellant is a small scale service provider. They have paid the service tax along with the interest before the issuance of show cause notice and also filed the necessary returns of the transaction of service provided by the appellant and the value thereof was retrieved from their book of accounts. With the above facts, I am of the view that the appellant have been able to show the reasonable cause for non-payment of service tax in time. Therefore, the appellant is entitled for the waiver of penalty imposed under Section 76 invoking Section 80 of the Finance Act, 1994, therefore the penalty is waived. The impugned order is set aside the appeal is allowed.
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2016 (11) TMI 874 - CESTAT MUMBAI
Whether the turnover in respect of services provided/exported prior to 1.4.2012 should be deducted from the export turnover as well as total turnover for arriving at the ratio for eligible refund under Rule 5 of the Cenvat Credit Rules 2004? - Held that: - The amended rule is applicable only for the exports taken place on or after 1st April 2012. The Ld. Commissioner has deducted the value of 10 invoices from the export turnover as well as from the total turnover of quarter April 2012 to June 2012, for the reason that exports made before 1.4.2012 is governed by the un amended Rule which shall not apply retrospectively on the export made prior to 1.4.2012. Therefore in my considered view the Ld. Commissioner has rightly deducted the value of 10 invoices pertaining the period prior to 1.4.2012 from export turnover as well as total turnover for the period April - June 2012.
Limitation bar - Held that: - when in the Notification issued under Rule 5 it is a condition that the assessee has to file refund only once in a quarter. Accordingly, he is not allowed to file refund before quarter is completed, in that case, the relevant date for computing 1 year for the purpose of Section 11B shall be from 30.6.2012. In the present case, the respondent filed refund claim on 26.4.2012 i.e. within 1 year from 30.6.2012, hence the same is clearly within 1 year as provided under Section 11B. The Ld. Commissioner has rightly held that the refund is within the stipulated time period of 1 year.
The Order-in-Original No. R/459/STC/PIII/2013, dated 23.0902013 passed by the Deputy Commissioner, Service Tax Cell, Pune-III Commissionerate is modified and further refund of ₹ 40,13,161/- is allowed with consequential relief. The present appeal is allowed in toto - appeal dismissed - decided against Revenue.
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2016 (11) TMI 873 - CESTAT MUMBAI
Rejection of Refund claim - export of services - N/N. 41/2007-ST dated 6/10/2007 - drawback availed - Held that: - as regard the rejection of claim on the ground that the appellant have availed drawback, the lower authority have not considered the amendment vide Notification No. 33/2008 dated 7/12/2008 wherby condition as specified under clause (e) of para 1 has been deleted w.e.f. 7/12/2008 therefore even though the appellant have availed the drawback refund cannot be rejected on this ground.
Despite availability of the relevant documents, lower authority have rejected their claim with contention that co-relation was not established and documents were not submitted, I therefore allow the appeal by way of remand to the original adjudicating authority to pass a fresh order in respect of claim which was rejected, taking into consideration of my above observations on the facts and merits of the case - Appeals allowed - matter remanded.
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2016 (11) TMI 872 - CESTAT CHANDIGARH
Refund claim of accumulated Cenvat credit unutilised in their Cenvat credit account Under Rule 5 of the Cenvat Credit Rules, 2004 - Time bar - Held that: - I find that under Rule 5 of the Cenvat Credit Rules, 2004, the refund claim is required to filed once in a quarter i.e. during the pendency to the quarterly if export has been completed, in that case also refund claims required to filed within one year of the last date of the quarter. In this case, only one refund claim is required to be filed for the quarter, in that case, the relevant date is the last date of the quarter. In this case, for the quarter January, 2008 to march, 2008 the refund claim has been filed on 30-3-2009, which is within one year of the last date of quarter. Further, for the refund claim pertains to October, 2008 to December, 2008, the refund claim has been filed on 30-11-2009 which is also within one year of the date of end of quarter. In that circumstances the refund claims filed by the appellant are within time, therefore refund claims cannot be rejected as time barred.
Appeal allowed - refund allowed - decided in favor of appellant.
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2016 (11) TMI 871 - CESTAT MUMBAI
Rectification of Mistakes - threshold exemption - Held that: - the first appellate authority has recorded that he is unable to extend the benefit of Notification 8/08-ST dated 01.03.2008 as the appellant had not produced any documents as to their turn-over in the previous year. Before us also, nothing is produced to come to a concrete conclusion- In our view, principally the appellant should get the benefit of exemption under Notification No.8/08-ST if they are able to produce an evidence that their turn-over service rendered from the previous year falls within the period of exemption. To that extent, we hold that the appellants have made out a case in the ROM application.
Levy of tax - direct purchase of products made by the applicants from RMP - Held that: - there is no error apparent on the face of the record on this point
Computation of liability to the extent the consideration is received by the applicants to be taken as inclusive of tax - Held that: - duty or tax liability is to be worked out from the amounts/consideration received holding the same as cum-tax consideration. To that extent we hold that the applications for ROM need to be allowed.
The tax liability is upheld interest but the same needs to be worked out - applications for Rectification of Mistake are disposed off.
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2016 (11) TMI 870 - CESTAT NEW DELHI
Eligibility for exemption/refund in terms of N/N. 41/2007-S.T., dated 6-10-2007 - export of excisable goods Soyabean Meal - Technical and Testing Services - Custom House Agent Services - Technical Inspection and Certification Services - Held that: - The services now under dispute were provided by registered service providers under the category of “Technical Testing and Analysis Services”. The tax has been collected under the said heading and no objection has been raised on that account. As such, the Commissioner (Appeals) found that the denial of refund of service tax paid by the respondent for the services for which they have paid service tax under the category of ‘Technical Testing and Analysis’ is not justified. He also observed that it is possible that a service may appear to be classifiable under more than one heading. Proper classification will be guided by the essential character in case of composite services. After due examination, the learned Commissioner (Appeals) held that the respondents are correctly eligible for refund. After careful consideration of the grounds of appeal and the impugned order, we find no merit in the present appeal and accordingly dismiss the same.
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2016 (11) TMI 839 - CESTAT CHANDIGARH
Demand - GTA service - Held that: - the appellant itself has arranged for transportation and paid the transportation cost and the same has been recovered from the bottlers. The contention of the appellant is that they were under bona-fide belief that the transportation cost is borne by the bottlers and they are required to pay service tax. In this case, the appellant itself has arranged for transportation and paid transportation changes. In these circumstances, as per Rule 2(1)(d)(iv) of the service tax Rules, 1994, the appellants are liable to pay service tax as they are paying freight charges to the transporters on behalf of the bottlers and as per the said provisions, they are liable to discharge the service tax liability on the GTA services. As the appellant did not pay service tax therefore, I hold that the appellant is liable to pay service tax along with interest during the impugned period on GTA services.
Whether the appellant was under bona-fide belief that they are not liable to pay service tax? - Held that: - the appellant has arranged for transportation and paid transportation changes, in that circumstances, the appellant is liable to pay service tax on GTA Service under reverse charges mechanism. Therefore, I hold that the extended period of limitation is rightly invoked in this case.
Whether the appellant can be given the benefit of section 80 of the Finance Act, 1994 to impose penalty or not? - Held that: - In this case, the appellant has paid service tax along with interest and the appellant has not got any benefit. In that circumstances, the benefit of section 80 can be given to the appellant. By giving the benefit of section 80 of the Finance Act, 1994, I drop the penalty against the appellant.
Matter on remand to verify the fact whether the appellant has paid the service tax along with interest or not, if Service tax has paid along with interest, the proceedings against the appellants shall come to an end otherwise the adjudicating authority is at the liberty to pass an order in terms of law - appeal disposed off by way of remand.
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2016 (11) TMI 838 - CESTAT HYDERABAD
Rejection of Refund claim - various input services - Rule 5 of the CENVAT Credit Rules, 2004 read with N/N. 5/2006-CE (NT) dated 14.03.2006 - Held that: - the period involved is prior to 01.04.2011 when the definition of input services had a very wide ambit as it include the words activities relating to business. In various judgments of the Tribunal as well as High Courts the subject services have been held to be eligible for credit during the relevant period. In a recent judgment the co-ordinate bench of the Bombay Tribunal in the case of M/s Reliance Industries Ltd. Versus Commissioner of Central Excise & Service Tax, LTU, Mumbai, [2016 (8) TMI 123 - CESTAT MUMBAI] has held the above services to be eligible for credit even post 01.04.2011. In view thereof, I hold that the rejection of refund claim on the ground that input services do not have nexus with the output services is against legal principles.
Time bar - Held that: - Section 11B of the Central Excise Act does not mention the relevant date in case of computation of time limit for refund claim filed for refund of service tax/export of services. The Hon’ble High Court of Andhra Pradesh, in the case of CC, CE & ST, Hyderabad Vs Hyundai Motor India Engineering (P) Ltd., [2015 (3) TMI 1049 - ANDHRA PRADESH HIGH COURT] has categorically held that the relevant date for calculating the time limit for grant of refund is the date of receipt of foreign exchange/consideration and not the date when the services were exported/provided. Following the judgment laid by the jurisdictional High Court I hold that the relevant date being the date of receipt of foreign exchange, the refund claim is filed within time. Therefore denial of refund is against law.
The appellant is eligible for refund and rejection of the same is unjustified. The impugned order to the extent of rejecting the claim of ₹ 15,53,977/- is unsustainable. The impugned order to this extent is modified and the appeal is allowed on above terms with consequential reliefs, if any
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2016 (11) TMI 837 - CESTAT ALLAHABAD
Retification of mistake - while deciding the appeal filed by the assessee, the appeal of Revenue also arising out of the common impugned order being Appeal No. ST/55857/14, was not taken up for disposal - miscarriage of justice - Held that: - the arguments of the ld. A.R., the Final Order dated 20-1-2015, is recalled in the interest of justice. Accordingly, M.A. (ROM), is allowed.
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