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Service Tax - Case Laws
Showing 81 to 100 of 192 Records
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2016 (11) TMI 836 - CESTAT ALLAHABAD
Classification of service - commission received from banks and financial institutions - Business Auxiliary Service (BAS) - suppression of disclosure of the transaction - interpretation of statute - Held that: - there was interpretational issue, as to liability to service tax in the matter, as is evident by the nature of activity and clarification by the Larger Bench of this Tribunal. Accordingly, we hold - (i)Service tax is payable under the category of BAS under Section 65(19), by the appellant for the normal period; (ii) Extended period is not invocable; (iii)Penalties imposed are set aside.
Appeal allowed.
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2016 (11) TMI 835 - CESTAT MUMBAI
Refund - Business Support Services - unjust enrichment - Held that: - the Ld. Counsel has taken me to various documents such as trial balance, annual report for 2006-07 & 2007-08 and schedule thereof wherefrom it is clearly observed that the amount of service tax paid in excess has been shown as ‘receivable’ under the head of ‘Loans and Advances - In my view, this is more than sufficient to show that incidence of excess paid service tax was not passed on to any other person - Decided in favor of the assessee by way of remand.
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2016 (11) TMI 834 - CESTAT MUMBAI
SEZ unit - export of services - refund of tax - exemption of the Service Tax as per N/N. 09/2009-ST dated 03.03.2009 - time bar - Held that: - the refund claims of the appellant cannot be rejected for reason that services are wholly consumed within SEZ and they are time barred having been filed beyond the period of six months. It is seen from records of all these cases, refund claims are filed within six months or within a period of one year and the amount of the refund which had been sought the appellant is an amount paid by the service provider and appellant having borne the incidence is eligible to the refund claim. As regards the various discrepancies as noted in the refund claims like no proper invoice, service of hiring of air craft and air transport services not approved by approval committee, registration no. not mentioned on invoices, invoice in the name of other unit, incorrect amount, depreciation allowance, allocation of rent and electricity, bill not produced for verification; we find these things need to be factually verified by the adjudicating authority. In view of this, the refund claim to the extent indicated herein above, we remand the mater back to the adjudicating authority to arrive a conclusion after consideration of the various records that may be produced by the appellant.
Appeal allowed - matter remanded.
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2016 (11) TMI 833 - GUJARAT HIGH COURT
Levy of service tax - cargo handling services - Held that: - Firstly, the issue was between the FCI and the Government whether the service tax could be recovered from FCI directly or not. In this context, the present applicant had no direct connection. We had struck down the Central Government’s attempt of recovering the service tax from FCI for the reasons stated in the order. The grievance of the applicant that the Government cannot recover such service tax from the applicant was neither a subject matter of such petition, nor could have been examined at the hands of the applicant even if was joined as a respondent. It is an independent angle of dispute between the applicant and the Government. Likewise, we are conscious that there are multiple disputes between FCI and the contractor. Such disputes were not and at any rate could have been made part of the FCI’s petition.
The request of recall of the order is refused. However, it is clarified that none of the observations made in the said order would bind the present applicant in its defense in the disputes with the Government or with FCI as the case may be - application disposed off.
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2016 (11) TMI 832 - CESTAT MUMBAI
Maintainability of appeal - fee for filing appeal not paid - rejection of Rebate claim - jurisdiction of Tribunal as per proviso (b) to Section 35B(i) of Central Excise Act - Held that: - though as per the provision of first proviso to Section 35B(i), the order relates to rebate of duty paid on goods exported are not appealable to this Tribunal and in such matter revision application lies before the Revisionary Authority, Government of India in terms of Section 35EE. However in case of service tax there is a specific provision made under Section 86 - From the above Section 86 there is explicit provision by which the order relating to grant of rebate of service tax on input, service tax or rebate of duty paid on input have been carve out for appeal before this Tribunal and in such cases the assessee is required to file revisionary application under Section 35EE. However, in the said provision, the rebate of service tax paid on output service has not been carved out therefore present appeal on the issue of rebate of service tax paid on output service exported out of India is maintainable before this Tribunal.
Section 35 EE is applicable but only for the cases related to rebate of service tax paid on input service or duty paid on inputs which were used in the export of services. Since there is independent provision under Section 86 in such cases Section 35 B need not to be resorted. Therefore the present appeals are maintainable.
As regard the fees for filing the appeal - Held that: - in case of rebate or refund matters, payment of fees is not required for filing the appeal.
Appeal allowed.
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2016 (11) TMI 831 - SC ORDER
Condonation of delay - Demand of service tax - Manpower Recruitment Service or Supply Agency Service - deputation of employees to other company - the decision in the case of Spirax Marshall P. Ltd., Forbes Marshall P. Ltd. & J.N. Marshall P. Ltd. Versus Commissioner of Central Excise, Pune I [2015 (11) TMI 978 - CESTAT MUMBAI] contested - Held that: - Delay condoned - appeal dismissed.
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2016 (11) TMI 790 - DELHI HIGH COURT
Pre-deposit - Section 35G of the Central Excise Act, 1944 read with Section 83 of the Finance Act, 1994 - Held that: - As far as the present appeal is concerned, the learned counsel for the Appellant is unable to convince the Court why the Appellant, which is located in Bhilai in Chhattisgarh, and with the order in adjudication having been passed by the Respondent i.e. the Commissioner Service Tax at Raipur in Chhattisgarh, is precluded from filing an appeal before the High Court at Chhattisgarh against the order of the CESTAT. - Consequently, the Court declines to exercise its jurisdiction to entertain the present appeal. The Appellant is at liberty to approach the appropriate Court to avail the remedy available to it in accordance with law.
Appeal not maintainable and is disposed off.
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2016 (11) TMI 789 - CESTAT NEW DELHI
Valuation - photographic service - the value of the material used, while providing the said services, required to be added in the assessable value of the services - period of limitation - Held that: - the demand is admittedly beyond the normal period of limitation except a part, in one case, by following the decision of the case CCE Vs. Centre Point Colour Lab [2011 (9) TMI 269 - CESTAT, NEW DELHI] where it was held that the value of services in relation to photography would be the gross amount charged including the cost of goods and material used and consumed in the course of such services - we set aside the impugned orders and remand the matter to the original adjudicating authority for requantification of the demand, if any falling within the limitation period.
The issue was not free from doubt and there is no malafide on the part of the appellant, imposition of any penalty upon them is not justified.
Appeal disposed off - decided in favor of appellant.
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2016 (11) TMI 788 - CESTAT NEW DELHI
Discharge of tax liability - GTA service performed by a society of Chhattisgarh State, statutory body performing statutory functions - Held that: - The circular No. 89/7/2006-ST dated 18.12.2006, has observed that the activities performed by Sovereign/ Public Authorities under the provisions of law are in the nature of Statutory Obligations and are being undertaken as mandatory and statutory functions. They are not in the nature of services to any particular individual for any consideration and as such, they do not constitute taxable service and no service tax would be leviable on the same.
Admittedly, the authority is a Government State Body assisting the farmers in procuring their produce under minimum retail price and assisting the farmers for sale of their produce. The clarification issued by Board to the above fact is a sufficient reason for the appellant, who were performing their statutory duties, to entertain the bonafide belief that they were not liable to Service Tax. Otherwise also, I find that in the absence of any evidence to reflect upon any positive suppression or mis-statement with an intent to evade payment of duty longer period of limitation would not be available to the Revenue.
Penalty set aside - Service Tax as also the interest stand confirmed against the assessee as not being challenged - appeal disposed off - decided partly in favor of appellant.
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2016 (11) TMI 787 - CESTAT KOLKATA
Mis-declaration of value of service - the Adjudicating Authority confirmed and appropriated ₹ 23,07,385/- alongwith interest of ₹ 8,68,576/- and imposed penalty of ₹ 9,67,373/- under Section 78 of the Finance Act, 1994 and gave option to the appellant to pay 25% within 30 days of the receipt of the Order-in-Original - Held that: - there was no intention of misdeclaring the value of taxable services in the return. That it being a proprietary concern and due to lack of professional guidance the error had unfortunately occurred. That whatever discrepancy was pointed out by the department, the assessee did not dispute the tax liability and started paying the taxes and maximum amount was paid much before the issuance of the show cause notice and an amount of ₹ 8,68,576/- was also paid as interest under Section 75 of the Finance Act, for the delay in paying service tax amount. Further, he submits that the option given by the Adjudicating Authority was exercised and 25% of the penalty amount of ₹ 9,67,373/- imposed under Section 78 was also paid to put the entire dispute at rest and to purchase peace of mind.
In this appeal, there is no material shown by the department as to how the option given to the respondent is erroneous. In my considered view, the Commissioner (Appeal) is correct in rejecting the appeal filed by the department and there is no reason to deviate from the said order - appeal rejected - decided in favor of Department.
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2016 (11) TMI 786 - CESTAT MUMBAI
Rectification of Mistake - expense of the membership of the Club has been booked under the head of “Staff Welfare Expenses” and therefore, credit of same should not be allowed - Held that: - I find that the only ground on which the rectification has been sought is that the expenditure undertaken on the services of Club Membership of the Director was booked under ‘Staff Welfare Expenses’ under Schedule 17 of the Profit and Loss Account. I find that the order of the Tribunal is very clear in this regard and clearly holds that the membership of the Business Club is indirect related to the promotion of business of the appellant. In view of this, it cannot be said that there is no nexus between the services availed and the manufacture of goods irrespective of the head under which the said expenses is booked in the balance sheet - ROM application dismissed
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2016 (11) TMI 785 - CESTAT MUMBAI
Levy of service tax on accrual basis - transaction with associated persons - when the debit/credit entry was made in the account in terms of Rule 6 of Service Tax Rules, 1994 - Held that: - I find that the issue is revenue neutral, in so far as the Service Tax paid by the appellant is available as credit to them. The issue is of interpretation. In these circumstances, no motives can be alleged and therefore, extended period of limitation cannot be invoked. In view of the above, the appeal is allowed.
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2016 (11) TMI 784 - CESTAT MUMBAI
Time Bar - “Maintenance and Repair Services” - issuance of SCN - period of limitation - Held that: - appellant had discharged the Service Tax liability for the earlier period and for the subsequent period accepting that he is liable to pay the Service Tax on the amount received from their clients - The contention of the appellant that quarterly returns are to be filed is erroneous since the quarterly returns were replaced by Half-yearly returns with effect from 16.10.1998, vide notification 57/1998 S.T. dated 07.10.1998. Accordingly, there was time to issue the instant show-cause notice upto 25.04.2009; whereas the instant show-cause notice was issued on 20.04.2009. Therefore, it is clearly evident the show-cause notice was validly issued and cannot be termed as time-barred in respect of any portion covered by it - appeal rejected - decided against assessee.
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2016 (11) TMI 707 - MADRAS HIGH COURT
Levy of tax - Erection, Installation and Commissioning of Telecommunication Towers - Held that: - the activity of supply of materials, services of civil and electrical and commissioning and installation are part and parcel of and incidental to the turnkey project of design, supply, erection, commissioning and installation of telecommunication tower project undertaken by them and consequently the value of materials which were consumed/used for providing the service is includible in the taxable value of service.
Delay in filing petition - Held that: - The respondent is bound by the Circular issued by CBEC. In the impugned order, there is no finding recorded by the respondent as to why the Circular was not adhered to and why the order was not passed within atleast one month after the conclusion of the personal hearing. It may be true that the delay by itself cannot be a ground to set aside the order, but if the assessee is put to prejudice on account of the delay, then it is a good ground to interfere with the order passed by the lower authority. However, in this case, this Court is not inclined to test the correctness of the order on the ground of delay, since this Court is satisfied that the impugned order is not sustainable, for the other reason, namely by relying upon an order of the Tribunal, which has been set aside, it is sufficient to hold that the impugned order is unsustainable and the matter requires fresh consideration.
Appeal allowed - matter remanded.
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2016 (11) TMI 706 - CESTAT NEW DELHI
Imposition of penalties u/s 76, 77 and 78 - evasion of tax on commission - Cable Operator services - non-accountal of the subscription amount collected from the customers in full - Held that: - The present controversy of non payment of Service Tax has arisen soon after the introduction of the new service. The claim of the appellant that they were under a bonafide belief that they are liable to Service Tax is limited to commission retained by them seems to be a reasonable intention. As per their belief the Service Tax stand paid on the commission amount retained by them.
Section 80 provides for waiver of penalties liable to be imposed under section 76, 77 and 78 if the assessee proves that there was reasonable cause for the said failure - where the detection of non payment of Service Tax was in the initial months after the introduction of Service Tax on cable TVs services, we are of the view that this is a fit case to waive the penalties under the then section 80 of the Finance Act, 1994.
Penalties u/s 76, 77 and 78 waived - appeal disposed off.
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2016 (11) TMI 705 - CESTAT NEW DELHI
Refund claim - unjust enrichment - Held that: - refund claim was sanctioned by the Ld. Commissioner (Appeals) not only based on the certificate issued by the Chartered Accountant but also on verification of books of accounts namely profit and loss account, balance sheet and the agreements entered into between the Respondents and the buyers. Hence, we are of the view that the doctrine of unjust enrichment will have no application and the respondent should be eligible for the refund claim. Therefore, we do not find any infirmity in the impugned order - appeal dismissed - decided against Revenue.
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2016 (11) TMI 704 - CESTAT NEW DELHI
Denial of refund of service tax - terminal handling charges - export of goods - N/N. 41/2007-ST - whether the denial of refund on the ground that no evidence of payment of service tax by the service provider to the Government is justifiable? - Held that: - the appellant s eligibility to refund under Notification No. 41/2007-ST for service tax paid towards terminal handling charges availed during the course of exports, inside the port area, has been settled by various decisions of the Tribunal and High Courts - reliance placed on the decision of the case of SRF Limited [2015 (9) TMI 1281 - CESTAT NEW DELHI] where it was held that the service tax on terminal handling charges was rightly covered under N/N. 41/2007-ST - denial of refund claim not justified - appeal allowed.
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2016 (11) TMI 703 - CESTAT NEW DELHI
Demand - cargo handling services - The service provided by the appellant for transporting fly ash in closed trucks after liasoning loading port and unloading of the same at the factory site has been held to be falling under cargo handling services - demand is beyond the period of five years - period of limitation - Held that: - the lower authorities have not referred to any positive evidence on record to show that the appellant indulged in any malafide activities with an intent to evade payment of duty. In such a scenario the demand raised beyond the period of limitation is not sustainable - the entire demand is beyond limitation - appeal allowed.
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2016 (11) TMI 702 - CESTAT NEW DELHI
GTA Service – reverse charge mechanism – manufacture of grey fabrics – import of yarn from Nepal – separate invoice raised for expenses like transportation, clearance expenses etc – is appellant receiving GTA services from exporter? - Notification No. 35/04-S.T - Held that: - similar issue stand decided in the case of M/s. Chairman Silk Mills Pvt. Ltd. Versus C.C.E. Jaipur-II [2016 (8) TMI 946 - CESTAT NEW DELHI] where it was held that the contract of appellant with the Nepalese suppliers is for supply of yarn and not for providing any particular service. Transport of goods is an activity incidental to the supply of goods for which Nepalese suppliers has engaged transporters. Nepalese suppliers had not acted as the agents of the appellants for arranging transportation from Nepal border to the factory premises of the appellants. Just because the Nepalese suppliers had billed the appellants separately for transportation from Nepal border to factory premises alongwith other expenses, they do not become the agents of the appellants. In view of this, the appellants cannot be treated as recipients of GTA services in terms of Notification No. 35/04-S.T. - appeal allowed.
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2016 (11) TMI 701 - CESTAT CHANDIGARH
Waiver of pre-deposit - Supply of Tangible Goods or Management of Maintenance or Repair Service - Barred by limitation - Held that: - As the applicant was having effective control and possession of the goods, therefore, the applicant does not qualify under the category of 'Supply of Tangible Goods Services'. In that circumstances, we are view that service tax is not payable by the applicant under the category of 'Supply of Tangible Goods Services' under the reverse charge mechanism - Demand of service tax has been confirmed under the category of Management of Maintenance or Repair Service for the service provided to the Indian customer of the foreign principal under the warranty service whatever the expensive made by the applicant have been reimbursed from the outside of India - Decided in favor of the assessee.
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