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Service Tax - Case Laws
Showing 21 to 40 of 139 Records
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2016 (2) TMI 978
Demand - Business Auxiliary Service - job work - appellant has cleared some goods after processing on issuance of the challan or invoices for job work without payment of service tax - Held that: - the demand has been confirmed only on the basis of the record found in the computer of the appellant and these entries have been made by the computer operator on the instructions of Shri O.P. Gandhi. Shri O.P. Gandhi also filed an affidavit that he has directed to make entries who also filed complaint with the department against the appellant. Shri O.P. Gandhi has filed an affidavit to that extent. I also find that department has not come up with any clear evidence to controvert the affidavit filed by Shri O.P. Gandhi. Further, no investigation has been conducted at the end of the parties on whose behalf, the appellant did job work and no investigation was conducted at the end of the transporter. Therefore, the revenue has failed to come up with clear evidence against the appellant to demand the service tax - demand not sustainable against the appellant - penalties not sustainable - appeal allowed.
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2016 (2) TMI 977
CENVAT credit - input service - Rule 2(l) of the Cenvat Credit Rules, 2004 - renting of immovable service - construction services - general insurance services - rent-a-cab services - Held that: - I find that general insurance services availed by the assessee for the benefit of their employees only who are working in the factory of the assessee. Therefore, the Ld. Commissioner (A) has rightly dropped the demand. Further I find that rent-a-cab services have been availed by the assessee for the employees bringing them from their residence to factory or vice versa. In that circumstances, the said services qualifies as input services in the light of the decision of the Hon’ble High Court of Bombay in the case of Ultratech Cement Ltd., [2010 (10) TMI 13 - BOMBAY HIGH COURT]. Therefore, I do not find any merit in the impugned order qua the service on which Revenue has filed an appeal before me. In these circumstances, the appeal filed by the Revenue is dismissed.
Renting of immovable service - Held that: - I find that the appellant is having other unit which has been on rent therefore, whatever amount paid as rent by the assessee and service tax paid thereon is entitled as input service as the said service has been received by the assessee in the course of their business of manufacturing. Therefore, the impugned order qua denial of Cenvat credit on renting of immovable property service is set-aside.
Construction services - Held that: - I find that the assessee has availed Cenvat credit on construction services. As the construction services has been taken away from the definition of Rule 2(l) of the Cenvat Credit Rules, 2004 i.e. from 1-4-2011. In that circumstances Cenvat credit availed on constructions services post 1-4-2011 is denied. But for the period prior to 1-4-2011, I hold that the assessee is entitled to avail credit as the same is availed by the assessee in the course of the business of manufacturing. Accordingly, the matter is consigned to the adjudicating authority for quantification of input services credit to be denied to the assessee for the period post 1-4-2011.
Appeal disposed off by way of remand.
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2016 (2) TMI 976
Waiver of pre-deposit - Held that: - The CESTAT, Hyderabad is requested to hear the petitioner’s application for waiver of pre-deposit at the earliest. It is made clear that, if the petitioner does not appear and put forth their arguments on the next date of hearing of the stay petition fixed by the Tribunal, it is open to the Tribunal to decide the application, for waiver of pre-deposit, on its merits without granting any further adjournment to the petitioner - petition disposed off.
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2016 (2) TMI 975
Providing Terminals - Stock brokers - the decision in the case of Madras Stock Exchange Financial Services Ltd. Versus Commissioner of Central Excise [2009 (6) TMI 61 - CESTAT, CHENNAI] contested - Held that: - Since the tax effect is low, we are not inclined to entertain this appeal or interfere with the impugned order - appeal dismissed.
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2016 (2) TMI 969
Refund of the amount of service tax - Terminal Handling Charges - export of services - Held that: - there is no dispute regarding the use of these services in export of the goods, discharge of service tax liability on the part of services provider; there is no dispute as to that respondent had not claimed any duty drawback of the service tax paid on the services nor there is any evidence that respondent assessee had claimed exemption of refund of service tax paid on services. We find that these services are included in the services those are eligible for availment of credit, if they are used in manufacturing of exported goods. In our considered view, the impugned order has correctly appreciated the law in force on this point and the refund has been correctly sanctioned to the respondent assessee - appeal rejected - decided against Revenue.
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2016 (2) TMI 943
Service tax liability - manpower recruitment and supply agency services - supply of labour for harvesting and transportation of sugar cane to the sugar factory - Held that: - the issue is no more res integra as the Hon’ble High Court of Bombay in the case of Commissioner of Customs, Central Excise & Service Tax vs. Godavari Khore Cane Transport Co. P Ltd.[2015 (3) TMI 483 - BOMBAY HIGH COURT] in similar set of facts held in favour of the assessee holding that the activity will not fall under the category of ‘manpower recruitment and supply agency services’ - the impugned order is unsustainable and liable to be set aside - service not taxable - appeal allowed - decided in favor of appellant.
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2016 (2) TMI 942
Taxability - activity of excavation and disposal of soil on the site - whether the said service would fall under the head Commercial or Industrial Construction Services? - Held that: - the findings recorded by the first appellate authority that due to non clarity of the work under taken by the appellant, the classification of the services is under “Commercial or Industrial Construction Services” cannot be discarded, in the absence of any evidence to show that the work under taken by the appellant was in respect of the roads.
The appellant could have entertained a bonafide belief that being sub-contractor they need not discharge any service tax liability. In our view, this is the fit case for invoking the provisions of Section 80 of the Finance Act, 1994, for setting aside the penalty impose by the lower authority - the service tax liability and the interest thereof upheld, but penalties imposed set aside, by invoking the provisions of Section 80 of the Finance Act, 1994.
Appeal disposed off - decided partly in favor of appellant.
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2016 (2) TMI 941
Rejection of Rebate claim - service tax paid on services rendered in SEZ - whether the rejection of claim on the ground that the services were not exported and used outside India and payment for such services is received in convertible foreign exchange is justified? - whether rebate can be claimed on service tax paid and not claimed only in respect of the central excise duty paid - the decision in the case of SUJANA METAL PRODUCTS LTD. Versus COMMISSIONER OF C. EX., HYDERABAD [2011 (9) TMI 724 - CESTAT, BANGALORE] relied upon - Held that: - The said law squarely applies in the case in hand as the issue is similar, where it was held that after coming into force of SEZ Act, supplies made by DTA units to SEZ units are to be treated as export and entitled to benefits as such.
Since there is no dispute that the services were rendered to the units in SEZ area, the impugned order has correctly followed the law and sanctioned the rebate claim - appeal dismissed - decided against Revenue.
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2016 (2) TMI 940
Waiver of pre-deposit - exempted services as per the provisions of Rule 6(3) of Cenvat Credit Rules, 2004 - Banking and Financial Services - non-maintenance of separate books of accounts for taxable and exempted services - Held that: - there is no justification in the confirmation of demand with interest and penalties for the reason that the services rendered by the appellant are not exempted by Notification 29/2004-ST. The said Notification only excludes the value of the amount received by the appellant towards the interest of over-draft facility and cash credit facility. Learned Counsel was correct in pointing out to us that the issue may be covered by the judgement of the Tribunal in the case of M/s Vaidyanath Urban Co-operative Bank Ltd. Versus Commissioner of Central Excise, Aurangabad [2015 (11) TMI 952 - CESTAT MUMBAI] for the purpose of stay and we find it so. Accordingly, the application for waiver of pre-deposit of the amount involved is allowed and the recovery thereof is stayed till the disposal of appeal.
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2016 (2) TMI 939
Application for out-of-turn hearing - issue is covered by the decision of this Bench in the case of Ideal Road Builders P. Ltd. [2015 (8) TMI 592 - CESTAT MUMBAI] - Held that: - the issue is regarding the service tax liability on the appellant in relation to collection of toll as has been extended to them by National Highway Authority of India. The Bench has taken a call of the judgement of Ideal Road Builders P. Ltd. and held that the said activity does not amount to any service rendered and no service tax arises. We do not find any reason to deviate to such a view taken by this Bench (wherein one of us Shri M.V. Ravindran was a Member) - appeal allowed.
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2016 (2) TMI 937
Rectification of mistake - mistake creeping in final order - typographical error - corrections made - application disposed off.
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2016 (2) TMI 912
When the petitioner has got appeal remedy before the CESTAT the averment stated in the affidavit cannot be accepted. In these circumstances, the Writ Petition is liable to be rejected.
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2016 (2) TMI 873
Classification of services - Levy of interest and penalty - It merely pleaded that there was no malafide intention in not remitting the tax and therefore, neither interest nor penalty should be levied. - Held that:- As the validity of the classification of the service is a factor integral to the legitimacy of levy and collection of tax, we have allowed the miscellaneous application for raising additional grounds and we consider the factual matrix of the Appellant’s rendition of service in the context of the two competing services ‘ ‘site formation etc.’ and ‘mining’ service.
On a true and fair construction of the matrix and bouquet of service provided by the Appellant, considered in the light of the two taxable services i.e. ‘site formation’ on the one hand and ‘mining’ on the other, and applying the provisions of Section 65A of the Act, the conclusion is compelling that since the essential character of the services provided by the Appellant is mining of Lignite and removal of Over Burdens is an activity incidental to facilitate and effectuate mining of lignite and as the quantum of lignite mined is also, under the schedule of quantities of the agreement between the Appellant and GHCL is predominantly, the contract should be considered in essential character as a contract for mining of lignite. On this reasoning, the service provided by the Appellant to GHCL clearly and undisputedly falls within the ambit of mining service and cannot be classified as “site formation etc” service.
Demand of service tax with interest and penalty set aside.
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2016 (2) TMI 872
Mandap Keeper services - Valuation - inclusion of catering charges - Held that:- the appellant’s claim that the entire charges relating to buffet dinner should be excluded from the assessing value in terms of notification No.12/2003-ST is clearly not sustainable.
However, it is also a fact that when the cost of food is included in the overall charges recovered by the appellant which included hall rent and buffet dinner charges it is entitled to the benefit of Notification No.12/2001-ST as amended by Notification No.8/2004-ST and the Commissioner has extended the said benefits and allowed abatement of 40% on the gross value charged by the appellant - No infirmity in the impugned order - Decided against the appellant.
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2016 (2) TMI 871
Levy of penalty - proprietary concern - it was pleaded that the definition given for the services in question namely “Commercial or Industrial Construction” defined under Section 65(105)(zzq) of the Finance Act, 1994 earlier used by words “Commercial Concern” which was substituted by wordings “by any other person” by Finance Act, 2006 dated 18.4.2006 with effect from 1.5.2006, and therefore, the respondents had been under the impression that they being “proprietary concern” were not covered by wordings “commercial concern” and were consequently not liable to payment of service tax.
Held that:- it is clear that there were sufficient reasons for the respondents in bona fidely believing that they were not liable to service tax during the relevant period especially when we view the amendments in the definition of “Industrial Construction” service made on 28.4.2006 by the Finance Act, 1994 made effective with effect from 1.5.2006 and the C.B.E.C’s letter No. 334/4/2006-TRU dated 28.2.2006; thus invoking the provisions of Section 80 of the Finance Act and the provisions of Section 73(3) of the Finance Act, 1994, the respondents’ case on non-imposition of penalty is sustainable and the appeal filed by the Revenue deserves to be rejected. - Decided against the revenue.
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2016 (2) TMI 870
Validity of rectification of its order by the Commissioner - principle of natural justice - although the respondent appeared before the Commissioner for hearing, it requested vide letter dated 29.03.2008 for one month's time. The Commissioner did not reject its request but at the same time went ahead and passed an order dated 30.04.2008 without notice to it and so the impugned order was in effect passed without personal hearing. Therefore, there was a mistake apparent from the records which needed rectification. - Held that:- Revenue has not been able to produce any evidence before us to show that vide letter dated 29.03.2008 the respondent had given up its right to be heard in person. It is thus evident that the order dated 30.04.2008 was passed without granting personal hearing when there was a request made for the same and without rejecting that request. It is certainly an error which is apparent from the records of appeal and such an error renders the orders to be a nullity. - Decided against the revenue.
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2016 (2) TMI 869
Claim of refund of service tax paid under reverse charge mechanism - export of services - non submission of BRC - whether service tax paid inadvertently, can be retained by the Govt. Exchequer on the ground of non-submission of BRC, especially in the contest of specific observations made by lower authorities that the appellant was not liable to pay service tax under Reverse Charge Mechanism. - Held that:- since the authorities below have specifically recorded the findings that the refund claim of service tax including interest paid by the appellant under Section 66A vide Challan No. 00037 dated 26.06.2011 against the services received during 01.01.2005 to 17.04.2006 from overseas agent is legally tenable, then rejection of refund claim on the ground of non-submission of BRC's is not supported by any provisions of law. - refund allowed - Decided in favor of assessee.
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2016 (2) TMI 849
Refund of such accumulated unutilized Cenvat credit - Rule 5 of CCR - Export of services some of which taxable and some non-taxable. - Nexus between input service and output services - period of limitation - relevant date - Held that:- such nexus can be examined only at the level of the original adjudicating authority. - Matter remanded back on this ground.
Regarding period of limitation - Held that:- the relevant date was held to be the date on which the consideration was received by the service provider. However with effect from 1.4.2011, the law has been changed for the purpose of payment of service tax and it has been held to be the date on which date invoice was raised. Accordingly, the relevant date which has been held as receipt of consideration received, in the decision in the case of Hyndai Motor India Engg (P) Ltd. should be shifted as date of raising of invoice. We note that the period in the present appeal is prior to 1.4.2011 and as such, this is not one of the issues to be decided in the present case. Accordingly, the same is kept open.
We find no merits in the appellant's contention on the point of limitation. Accordingly, we uphold a part of the impugned order vide which he has held that a part of the demand is barred by limitation. Inasmuch as the appeal stands remanded to the original adjudicating authority for the purpose of examination of nexus, he would decide the quantum of refund falling for the period within the limitation, based upon the date of consideration received by the appellant - Decided partly in favor of assessee.
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2016 (2) TMI 848
Demand of service tax on Currency Conversion Charges (mark up of 3%) in respect of under Credit Card and Debit Card services - Scope of Banking and Financial Services Territorial jurisdiction - payment in relation to foreign transactions - Held that:- the mark up charges accruing to the appellant when card holder uses card to pay in foreign exchange abroad is not liable to service tax under 'Credit Card Services' during the impugned period. This conclusion is based both on merit of scope of 'Credit Card Services' during relevant period and lack of territorial jurisdiction of charge.
the mark-up on foreign currency transaction in case of a credit card is part of the cost of goods / services purchased by the card holder and is not a consideration for extending credit facilities. - The "mark up" charges accruing to the issuing bank when card holder uses credit card to pay in foreign exchange abroad is not liable to service tax under credit card services (under Banking & Other Financial Services) during the relevant period.
Since we have already held in respect of credit card services, the mark-up charges is not liable to service tax under credit card services -section 65 (12) (ii), the same is applicable to the mark-up charges accruing to the issuing bank in respect of debit card charges. - Demand set aside - Decided in favor of assessee.
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2016 (2) TMI 847
Availing cenvat credit while availing the benefit of abatement notification - CESTAT while deciding the issue in favor of assessee observed that, assessee was not put to notice on the question whether they had claimed Cenvat credit for claiming the abatement and there is no documentary evidence on record to prove that they had accordingly availed the credit during the impugned period. - Held that:- This fact that the documents are already on record is not disputed by the assessee. Shri Dawda, learned counsel submits that there was no specific notice in this respect to the assessee. In addition he also points out that the appellant was duty bound to point out to CESTAT a notification dated 28.07.2010 which exempted a contractor engaged in a contract covered thereunder, from payment of service tax. - Matter remanded back to Tribunal - Decided in favor of revenue.
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