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Service Tax - Case Laws
Showing 101 to 120 of 139 Records
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2016 (2) TMI 366 - CESTAT NEW DELHI
Benefit of abatement - installation/commissioning of ground based towers for BSNL - Revenue stated that the appellant was liable to pay service tax by including the value of towers and as the value was not included abatement of 67% under Notification No. 1/2006-ST was not admissible and therefore the impugned demand is sustainable. - Held that:- the question of availability of 67% abatement under Notification No. 1/2006-ST loses relevance as whatever service tax the appellant paid can be deemed to be reversal of the Cenvat credit of service tax (paid by sub-contractor) taken by it (i.e. the appellant) when service tax paid by it (appellant) was not less than such credit taken. - Stay granted.
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2016 (2) TMI 365 - CESTAT CHENNAI
Refund - service tax was paid erroneously - export of services - Period of limitation - Revenue claimed that when the appellant did not follow the route of the notification, its claim is barred by law - it had not availed exemption granted by Notification No.18/2009 - Held that:- The present claim of the appellant goes to the root of section 11B which deserves consideration. Reasoning state in this order as above is fortified from the principle laid down in para 9 of the judgment of the Hon'ble High Court of Allahabad. Hon'ble High Court noticed in Addi Industries Ltd. [2014 (4) TMI 844 - ALLAHABAD HIGH COURT] that case that the taxable services being related to the export for the period Apr,'08 to Jun.'09, appellant was even not entitled to get the refund thereof under Section 11B. No doubt, once the period of claim relates to post notification period, appellant deserves consideration. - Matter remanded back.
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2016 (2) TMI 336 - CESTAT MUMBAI
Cenvat Credit - eligible input services after amendment - outdoor catering services, life insurance and premium - Held that:- there is specific exclusion in respect of outdoor catering service and various other services including life insurance when such services are used for primarily or personnel use of consumption of any employee in the case as per the case records the services of outdoor catering and the life insurance services were clearly received for personal use of employees is not controverted in the grounds of appeal. - Credit cannot be allowed - Decided against the assessee.
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2016 (2) TMI 335 - CESTAT CHENNAI
Demand of service tax on promotion/marketing/sale of the goods of M/s. Amway India Enterprises - appellants were not discharging service tax liability on the commissions received under multilevel marketing scheme (Direct Marketing) - extended period of limitation - Held that:- service tax demand in respect of commission received by the appellants on direct retail sale is liable to be sustained and the service tax on the commission received for sale of goods through second and third level distributors is sustained.
Matter remanded back to adjudicating authority to re-quantify the service tax demand on the commission received on the volumes of purchases made by the distributors, sponsors enrolled by the particular distributor. and to grant the benefit of notifications if available.
Decided partly in favor of assessee.
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2016 (2) TMI 334 - CESTAT ALLAHABAD
Delay in filing of an appeal before Commissioner (Appeals) - period of limitation - The appeal was filed after five months and sixteen days. - The ld. Commissioner (Appeals) held that in terms of Section 85 (3A) of the Finance Act, 1994, the initial period of appeal of two months is extendable by another one month by the ld. Commissioner (Appeals). However, the present appeal before him, was filed with further delay of more than three months and hence, he rejected the appeal as barred by limitation - Held that:- Commissioner (Appeals) cannot exercise powers beyond condonable period of limitation under Section 85 of the Finance Act, 1994. - there is no ground to interfere with the order of the lower Appellate Authority in this case. - Appeal dismissed - Decided against the assessee.
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2016 (2) TMI 333 - CESTAT KOLKATA
Condonation of delay - Period of limitation for filing an appeal - To be computed from the date of original order or from the date of modified order in original - Held that:- The case laws relied upon by the appellant are not applicable to the present factual matrix as it was not a case of modification of a stay order passed by Commr (A). Secondly, the modification application before Commr (A) can not be considered as an appeal filed before a wrong forum. Filing such a modification of a final order before the first appellate authority has no legal backing at all. - delay of more than 1000 days in filing appeal before us, is not satisfactorily explained by the appellant. MA (COD) filed by the appellant is dismissed. - Appeal dismissed - Decided against the assessee.
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2016 (2) TMI 332 - CESTAT KOLKATA
Waiver of pre-deposit - Demand of service beyond the scope of show cause notice - though initially it was demanded in the SCN under the category of "Mining services", but in the adjudication order, the said demand was confirmed under 'Business Auxiliary Service' and GTA services. - Held that:- At this stage, it is difficult to accept the contention of the Revenue that discharge of service tax liability for the services rendered mostly in Orissa and partly in Jharkhand at Bhubaneswar, Odisha cannot be accepted as payment towards their liability and the applicant is required to discharge service tax again. Therefore, on this account, the applicant could able to make out a prima facie case for total waiver of pre-deposit. Since the appellant had submitted their reply explaining their stand on the applicability of BAS & GTA service to their case, prima facie, it cannot be said that the Order is de hors the record of the case. - Stay granted partly.
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2016 (2) TMI 331 - CESTAT ALLAHABAD
Demand of service tax - Activity of Erection of Tele-communication towers for BSNL - taxability prior to 01/6/2007 - Held that:- Though there is mention about making civil work of foundation, as contended by the learned AR documents to show the nature of material involved and supplied in the execution of the contract is not forthcoming. - However, he agreed that the value of the tower and other supplied materials of BSNL is not included in the gross value for VAT assessment, as such, we find certain basic facts, like the actual supply of materials in the execution of contract to establish the composite nature of contract requires verification by the Original Authority. - Matter remanded back.
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2016 (2) TMI 316 - CESTAT MUMBAI
Cenvat Credit - scope of capital goods and input services for providing output services being General insurance services - credit of duty of excise paid on furniture and fixture - Revenue is of the view that they could not have availed CENVAT credit on Furniture and Fittings as they were not capital goods and on the "Outdoor Catering Services" it was not related to the services rendered by them which are taxable.
Held that:- appellant is eligible to avail CENVAT credit to the extent of service tax paid by the canteen contractor and is not eligible to avail CENVAT credit of the service tax paid on the value of the services utilized by the employees of the appellant.
Furniture and Fittings are nothing but tables and chairs which were procured by appellant during the relevant period. It is a common knowledge that any insurance company is required to have chairs and tables to render services to their clients. In our considered view, the said tables and chairs are used for rendering services of general insurance, accordingly, the appeal filed by the appellant on this issue needs to be allowed and we do so.
Appellant is eligible to avail the CENVAT credit of excise duty paid on Furniture and Fittings and also the service tax paid on canteen services as indicated herein above. - Decided in favor of assessee.
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2016 (2) TMI 315 - CESTAT NEW DELHI
Wavier of pre-deposit - Demand of service tax on advance received as per the balance sheet - Rate of composition tax on works contract - The appellant has contended that (i) It opted for Composition scheme for Works Contract Services when the rate of tax was 2%, and therefore the same rate should continue for the entire period of the contract - Held that:- While the demands under Show cause dated 21/10/2012 and 19/10/2012 are prima facie not barred by time limit, the appellant has raised the contention with regard to time bar in respect of the show cause notice dated 17/4/2012 which requires detailed analysis which can be taken up only at the time of final hearing. We are however prima facie not with the appellant on the proposition that once composition scheme is opted, the rate of tax thereunder as applicable on the date of opting for the composition scheme is locked for the entire period of implementation of the works contract. - Prima facie case is not favor of assessee - Stay granted partly.
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2016 (2) TMI 314 - CESTAT KOLKATA
Waiver of pre-deposit - Nature / type of payment made by the assessee - whether the amount of ₹ 82,82,956/- has been paid towards their routine service tax liability or reversal of CENVAT Credit towards their liability under Rule 6(3) of CENVAT Credit Rules, 2004 - Commissioner did not accept the said payment as reversal of credit observing that the said e-payment was in discharge of their liability towards service tax in providing taxable service and in their ST-3 Return, they had never been claimed that the said payment was in discharge of their liability for availing CENVAT Credit on input services used for both dutiable and exempted products.
Held that:- Considering the fact that the applicant has reversed an amount of approximately ₹ 19.00 Lakhs, it would be appropriate to direct the applicant to deposit an amount of ₹ 50.00 Lakhs keeping in view the interest of Revenue and also in the interest of justice. Consequently,, the applicant is directed to deposit ₹ 50.00 Lakhs (Rupees Fifty Lakhs) within eight weeks from today and on deposit of the said amount, balance dues adjudged would stand waived and its recovery stayed during the pendency of the appeal. - Stay granted partly.
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2016 (2) TMI 313 - CESTAT MUMBAI
Refund of unutilized cenvat credit - export of services - distinguish between the refund claims as those prior to registration and those post-registration - Held that:- In the absence of a statutory provision which prescribes that registration is mandatory and that if such a registration is not made the assessee is not entitled to the benefit of refund, the authorities committed a serious error in rejecting the claim for refund on the ground which is not existence in law. - Refund allowed.
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2016 (2) TMI 289 - CESTAT ALLAHABAD
Valuation - repair and maintenance activities - demands have been raised on the material components utilized in repair and maintenance work of LPG cylinders carried out by the appellant holding the same to be consumables, thereby not having any element of deemed transferred of property in the same. - Held that:- the issue is no longer res-integra. It has been explained in the decision by the Apex Court that service tax and sales tax are mutually exclusive. Further following the ruling of the Apex Court in the case of Pro Lab and others (supra) and Balaji Tirupati Enterprises (All-HC)), we hold that the ld. Commissioner is in error in Levying tax on the material component involved in repair and maintenance of the cylinders carried out by the appellant. Thus, the impugned order is set aside - Decided in favor of assessee.
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2016 (2) TMI 259 - CESTAT NEW DELHI
Refund - input services - duty paying documents - improper invoices not being in the proper form as per the provisions of Rule 4A of the Service Tax Rule 1994 as they did not contain complete details - Held that:- so long as the documents (debit notes) reveal the essential details like registration no service provided, service recipient, value of taxable service, refund cannot be rejected merely because the documents are debit notes.
Refund of service tax paid on THC Charges, REPO Charges, BL charges, DDC Charges and hollage charges is admissible in as much as the same are the port services. - Decided in favor of assessee.
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2016 (2) TMI 258 - CESTAT NEW DELHI
Refund - specified services requires for authorised operation in the Special Economic Zone (SEZ) - period of limitation - - Notification No. 9/2009 ST, dated 03.03.2009. - The appellant has contended that the ground of rejection namely non-submission of list of authorised operations - Held that:- Refund cannot be denied merely for procedural lapse - if otherwise assessee is eligible to get refund, it should be allowed - Decision in the case of Intas Pharma Ltd vs. C.S.T. - [2013 (7) TMI 703 - CESTAT AHMEDABAD] followed.
Period of limitation - As regards the issue of time-bar the appellant has contended that in one case there is a delay of 2 days because of the intervening Saturday and Sunday and the claim was filed on Monday. Further the Assistant/Deputy commissioner had power to condone the delay in terms of para 2 (f) of notification No. 9/2009 - ST - Held that:- Having regard to the nature of refunds and quantum of delay, we are of the view that the delay not being unreasonable deserved o be condoned in terms of the aforesaid para 2(f) of Notification No.9/2009-ST.
Refund allowed - Decided in favor of assessee.
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2016 (2) TMI 257 - CESTAT NEW DELHI
Waiver of pre-deposit - Erection, commissioning or installation service during the period prior to 1.6.2007 for Delhi Metro Rail Corporation Ltd. - ambit of Section 65(105)(zzd) of the Finance Act, 1994 and consulting engineer service enumerated under Section 65(105g) of the Finance Act, 1994 prior to 1.6.2007 - Held that:- the conclusion is prima facie irresistible and compelling that the appellant had executed works contract, which is not taxable prior to 1.6.2007. - stay granted.
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2016 (2) TMI 256 - CESTAT BANGALORE
Refund claim for the unutilized CENVAT Credit - Export of Information Technology Software Services - Held that:- It is noted that after 1.4.2011, the words “in relation to business” have been removed. From the facts on record and the definition of “input service” given above it is clear that the input services in question have got nexus with the output service viz., IT Software Services which are being exported by the appellant.
Matter remanded back with the direction that original adjudicating authority will examine the documents produced with reference to the quantum claimed as refund in case of “works contract service” by the appellant.
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2016 (2) TMI 255 - GUJARAT HIGH COURT
Condonation of delay in filing an appeal before Commissioner (Appeal) - writ petition - jurisdiction to entertain a writ petition under Article 226 of the Constitution - Held that:- In the present case, quite apart from the petitioner presenting the appeal beyond the period what the Commissioner could condone, had simply not responded to the show-cause notice issued by the adjudicating authority. We have noticed that after receipt of show-cause notice, for months together, petitioner filed no reply. The order of adjudication came to be passed more than a year later. At no point of time, the petitioner either filed a reply or even participated in the adjudication proceedings. The adjudicating authority has recorded that, several notices for personal hearing were issued under registered A.D., despite which, neither the petitioner nor its authorized representative ever appeared before him.
Surely, the law does not come to the aid of indolent, tardy or lethargic litigant. The conduct of the petitioner would dissuade us from entertaining these petitions. - Decided against the appellant.
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2016 (2) TMI 240 - CESTAT BANGALORE
Refund - correlation of input services with export of services - Held that:- the matter is remanded to the original adjudicating authority to examine the refund claims of these appellants in the light of the principles laid down by the CESTAT’s Interim Order in the case of Apotex Research Pvt. Ltd. [2013 (9) TMI 1087 - CESTAT BANGALORE] - Decided partly in favor of revenue.
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2016 (2) TMI 222 - CESTAT AHMEDABAD
Cargo Handling Services - handling of export cargo as part of Stevedoring services - transportation of goods through barges (sea) - whether the Appellant is liable to pay the Service Tax on Lighterage & Stevedoring services rendered by them in relation to vessel or goods at the Magdalla/Hazira port under Port Services as defined under Section 65(82) of the Finance Act, 1994.
Held that:- The Appellant contended that the charges were fixed in the contract entered by way of negotiations. It is clear from the contract between the Appellant and M/s Essar Steel that it is an independent contract. In any event, the intimation given by the Appellant to GMB of the contract between them and M/s Essar Steels, cannot be treated as authorization by the port. - After considering the above decisions and the provisions of Finance Act, 1994, in our considered view, the facts in the case of Kandla Shipchandlers and Ship Repairers Association [2012 (9) TMI 850 - Gujarat High Court] would not be applicable in the present case, as there was no authorization issued by the GMB to the appellant and the demand of service tax on Stevedoring and Lighterage charges, under port service, on the appellant, prior to 01.7.2010, cannot be sustained.
The question of demand of Service Tax on barge charges and the handling charges connected therewith would not arise at all with effect from 10-10-2007 as they form an integral part of the transaction value for levy of customs duty. Even for the period prior 10-10-2007, the same position would apply for the reason that the import transaction is complete only when the goods reach the customs barriers and the bill of entry for home consumption is filed.
The demand of Service Tax alongwith interest on Lighterage and Stevedoring services rendered by the Appellant in relation to vessel or goods at the Magdalla/Hazira Port under 'Port services' would be upheld from 01.07.2010 and the extended period of limitation cannot be invoked. The demand of tax alongwith interest prior to 01.07.2010 and penalties are set aside. - Decided partly in favor of assessee.
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