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Service Tax - Case Laws
Showing 61 to 80 of 139 Records
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2016 (2) TMI 724
Refund of cenvat credit - Export of services are not - providing 'scientific and technical consultancy service' to clients located outside India - place of performance of services - Held that:- the services rendered by the appellant were consumed abroad where the appellant's clients used the service of inspection/test/analysis to decide whether the goods intended to be imported by them from India conformed to the requisite specifications and standards. In other words, the benefit of the service accrued to the foreign clients outside the Indian territory. By no stretch of imagination can it be said that there was no export of service - refund cannot be denied - Decided against the revenue.
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2016 (2) TMI 692
Application for advance Ruling - Revenue takes objection to the admissibility on the ground that it is not a proposed activity as covered under Section 96(D), since the company is incorporated on 18.11.2011 and has been filing the Income Tax as well as Service Tax Returns from time to time during all these years. According to the Department, therefore, this is not a proposed activity. The second objection raised by the Revenue is that there is a sister concern of the applicant which shares with the applicant an e-mail addresses as also the postal address and in case of that concern, some orders have been passed by the Service Tax Authorities. The Department, therefore, says that even on the second point, the application can not be admitted. - Taxability of activity of services for rendering analysis of the drugs and market survey etc.
AAR rejected both the contentions and admitted the application for consideration.
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2016 (2) TMI 691
Extended period of limitation - willful intention to evade service tax or not - the stance taken by the petitioner all along is that the petitioner has been submitting its Service Tax returns regularly by showing the details and particulars of the exemption availed of by them, which were within their knowledge and further that the respondent No. 3, while issuing the impugned order, has failed to consider the relevant fact that in terms of the Letter of Award, the burden of Service Tax was on the Service Receiver and the component of Service Tax paid by the Service Receiver was realized from the petitioner as Service Provider, which clearly indicates that it had nothing to gain by evading payment of the Service Tax.
Held that:- the respondent No. 3 did not record any findings regarding the allegation of the petitioner as to whether the burden of service tax was on the Service Receiver or whether the component of service tax paid by the Service Receiver was realized from the petitioner as Service Provider or whether the submissions of service tax returns regularly showing all the details and particulars are indicative of the fact that these facts are within the knowledge of the respondent authorities. These are vital facts which, if duly considered by the respondent No. 3, would have enabled him to come to the correct conclusions.
The initial burden is on the department to prove that the situations visualised by the proviso existed. But once the department is able to bring on record material to show that the appellant was guilty of any of those situations which are visualised by the section, the burden shifts and then applicability of the proviso has to be construed liberally. When the law requires an intention to evade payment of duty then it is not mere failure to pay duty. It must be something more. - Matter remanded back for fresh decision.
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2016 (2) TMI 690
Demand of service tax on Management, Maintenance or Repair service collected from Flat owners. - It was contended that builder is under obligation to maintain the building and the appellant only taken re-imbursement of various services which was provided by various service provider. Therefore the appellant has neither provided the service nor retained the amount of maintenance with them - Held that:- In this fact the appellant is not liable for service tax - service tax demand on Management, Maintenance or Repair service is clearly unsustainable and therefore same is set aside. - Decided in favor of assessee.
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2016 (2) TMI 689
Manpower Recruitment or Supply Agency Services or Job work activity - services of cutting and transporting of sugarcane to the sugar factories - their job included planning, arranging, authorization and nomination of persons who would be engaged in the said work. - Held that:- The issue involved in this case is no more res integra as the Hon'ble High Court of Bombay in the case of GODAVARI KHORE CANE TRANSPORT CO. (P) LTD - [2015 (3) TMI 483 - BOMBAY HIGH COURT] while upholding the judgement and order of this Tribunal holding that such an activity will not fall under the category of “Manpower Recruitment or Supply Agency Services” - No demand - Decided in favour of assessee.
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2016 (2) TMI 688
Valuation - Business auxiliary service (BAS) - inclusion of reimbursement of expenses - activity of providing personnel for operating and security and other support services, besides undertaking housekeeping, deposit of sale proceeds in bank, assistance in customer service and maintenance of records - period from July 2003 to March 2005 - Held that:- Undoubtedly the cost of such activities would form part and parcel of the charge levied by the appellant from M/s Indian Oil Corporation Ltd. It would, therefore, be incorrect to deduce that the said charges are reimbursements as these are in the nature of a consideration for the facilities and activities carried out in connection with the dispensing of the petroleum products belonging to M/s Indian Oil Corporation Ltd. in accordance with an agreement. Therefore, the entire amount received from M/s Indian Oil Corporation is liable to be taxed. - Demand confirmed - Decided against the assessee.
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2016 (2) TMI 660
Commercial Training or Coaching Services - activity of providing flying training to the students for obtaining pilot licence under various categories. - request to extend cum-tax-benefit - Held that:- the Instruction aforesaid holding the petitioner to be assessable to Service Tax is contrary to Section 65(27) and the Notification dated 25th April, 2011 - Demand set aside - Decided in favor of assessee.
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2016 (2) TMI 659
Adjustment of excess amount paid towards demand - Service tax liability on the value of SIM cards sold by the appellant to their mobile subscribers - Held that:- Demand of service tax withe interest confirmed - levy of penalty waived - however, credit of excess amount of service tax paid allowed to be adjusted with the demand. - Lower authorities directed to work out the tax liability and the interest thereof and adjust the same against the deposit made and excess amount, if any, be refunded to the appellant. - Decided partly in favor of assessee.
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2016 (2) TMI 658
Refund of un-utilized CENVAT Credit taken under Rule 5 of the Cenvat Credit Rules, 2004 - Applicability of Rule 6A of the Export of Service Rules, 2005 and Notification No. 39/2012-ST - Revenue argued that the appellants are not entitled to avail CENVAT Credit as they are not registered manufacturer or service provider. - Held that:- CENVAT Credit can be availed by only a registered Central Excise or Service Tax assessee. In the current case, the assessee is not a registered Central Excise or Service Tax assessee and therefore cannot come under the purview of Cenvat Credit Rules, 2004 and therefore cannot claim refund under Rule 5 of the Cenvat Credit Rules, 2004 - Decided against the assessee.
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2016 (2) TMI 657
Refund - period of limitation - export of services - Notification No. 11/2005 - ST - The period covered for the rebate was August 2005 to January 2006 and the application for refund was filed on 29.6.2007. - Held that:- A combined reading of Rule 5 of Export of Service Rules, 2005 and Notification 11/2005 -ST makes it clear that the rebate scheme under the said rules is a self-contained scheme and it nowhere invites the condition of one year for filing the application for rebate. - rejection of the appellants rebate claim on the ground of time-bar is not sustainable - refund allowed.
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2016 (2) TMI 656
Receipt of incentive and commission from the Maruti Udyog Limited while providing providing “authorised service station” and “business auxiliary service” - commission /remuneration received by the appellant from the financial companies. - Held that:- It is seen that the records do not indicate that the claim of the appellant that they are mere provider of “table space” and that these receipts are in the nature of consideration for such allocation can be controverted. Therefore, the tax levied on such remuneration is liable to be set aside.
The commission paid through the appellant to their executives is, admittedly, remuneration for the efforts made by the employees of the appellant to promote the products of the finance companies. Admittedly, they are employees of the appellant and, thereby, not free agents. Their promotional efforts cannot be delinked from that of the appellant; the fact that payments are made over to the appellant is sufficient to deduce so. That the appellant chooses not to retain any of the commission and instead passes them on to the executives is an internal policy of the appellant that need not concern the tax authority. Processing fees are the consideration for handling the loan applications and it is, undoubtedly, incidental to promotion of the service that is offered by the finance companies.
Decided partly in favor of assessee.
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2016 (2) TMI 646
Demand of service tax was confirmed on the ground that the appellant had provided “Commercial or Industrial Construction Service” (CICS), “Maintenance and Repair Service”, and “Site formation and clearance, excavation and earthmoving and demolish Service” to Giral Lignite Thermal Power Project during the period 08.06.2005 to 17.10.2008 but did not pay service tax on the gross amount received from the service recipient.
Held that:- it is evident that the appellant was not unjustified in holding the reasonable belief that works contracts were not taxable under the Finance Act, 1994prior to 01.06.2007 because even the speech of the Hon'ble Finance Minister quoted above gave the same impression. Indeed there was a great deal of confusion whether works contracts were vivisectable and liable to service tax prior to 01.06.2007, so much so that the Hon’ble President CESTAT setup Larger Bench of five Members to decide the issue and the issue was thus decided by the Larger Five-Member Bench of CESTAT in the case of L&T - In these circumstances, it is not possible to sustain the allegation of wilful misstatement / suppression of facts on the part of the appellant. - Demand set aside - Decided in favor of assesee.
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2016 (2) TMI 611
Business Auxiliary Service - Activity of maintaining complete Toll Operation, supply of Man Power and maintenance of Toll Collection System including Plaza maintenance etc. - in the case of Swarna Tollway (Pvt.) Ltd Vs CCE Guntur [2011 (5) TMI 192 - CESTAT, BANGALORE], the Tribunal allowed the appeal of the Assessee, on the identical issue, where the toll collection is related to the National Highway Authority of India. The Tribunal consistently viewed that the National Highway Authority of India cannot be treated as the customers of the Appellant. It is also observed that the NHAI is not running any business. Hence, we do not find any force in the submissions of the learned Authorised Representative for the Revenue. It is seen that the facts of the present case are squarely covered by the decisions of the Tribunal in the case of Intertoll India Consultants (P) Ltd [2011 (5) TMI 257 - CESTAT, NEW DELHI] and Intertoll ICS CE CONS O & MP Ltd [2013 (12) TMI 731 - CESTAT NEW DELHI]. - Demand set aside - Decided in favor of assessee.
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2016 (2) TMI 610
Multi Level Marketing - Business Auxiliary Services - Demand of service tax on commission earned from activity of sponsoring new distributors and commission earned on turnover achieved by them - Held that:- service tax is not payable on the Trade discount earned and profit on Trading in Amway goods. But the same is taxable on the commission earned from activity of sponsoring new distributors and commission earned on turnover achieved by them and accordingly remanded with direction to recalculate the tax liability. - Matter remanded back to recalculate the service tax liability - Decided partly in favor of assessee.
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2016 (2) TMI 609
Refund of un-utilized cenvat credit - period of limitation - export of services - refund claim filed within one year from the end of relevant quarter - rule 5 of Cenvat Credit Rules, 2004 - Held that:- unless the entire quarter is completed, the exporter cannot file his refund claim, as the crucial documents like Bank Realization Certificate issued during the said quarter are required to be submitted along with the refund claim. Also the formula prescribed in the new Rule 5 of the CCR requires the use of 'Net CENVAT credit' which can be arrived at only at the end of the relevant quarter
Notification provides for filing of refund claim within specific period, that would be applicable and the provisions of Section 11B of Central Excise Act, 1944 which is sought to be relied upon by the AR as well as in grounds of appeal is not applicable, as refund claim is filed by the respondent is not under Section 11B of the Central Excise Act; accordingly I do not find any error in decision of the first appellate authority as well as the Tribunal, no error apparent on the face of record; on this count, i.e. that the claim is to be filed within one year and after end of the quarter. - Refund cannot be denied - Decided against the revenue.
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2016 (2) TMI 608
Demand of service tax on the value of SIM cards while rendering “telecommunication services” between September 2002 and March 2006 - Held that:- SIM cards do not have a function other than as a service unextricably linked to the activation thereof which is itself acknowledged as a taxable service. - The appellant’s contention in the grounds of appeal that discharge of VAT obligation to the state government will relieve them of tax liability under Finance Act, 1994 is, therefore, not tenable.
Cenvat Credit - duty paying documents - address and name is different on the face of most of the Invoices - Held that:- the onus vests on the claimant of credit to evidence the receipt of such services at such premises as are pertinent to the taxable services being rendered. Goods permit a certain ease of ascertainability by the tax officer; services are not easily amenable to such authentication and mere evidence of amalgamation of an entity with appellant will not suffice for the purpose of Rule 9(2) of CENVAT Credit Rules, 2004 without evincing place of receipt of input service as the place pertinent to supply of output service. The claim of the appellant fails rendering the order of the original authority unassailable on this count.
Taxability of charges on roaming facility availed by customers of overseas service provider while in India - Held that:- the tax was not being collected and paid into the Consolidated Fund of India since the introduction of the tax in 1994 and the Central Government has decided to regularize this industry practice prevailing for the period upto January 2007. The appellant being a licencee who has been conforming to the trade practice, is also a beneficiary of this magnanimity. Impugned order is not upheld on this count.
Extended period of limitation is not invokable - Decided partly in favor of assessee.
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2016 (2) TMI 595
Extended period of limitation - assessee stopped payment of service tax in the pretext of seeking clarification from the Commissioner - Held that:- The order of the Commissioner is well reasoned and discussed. It has analyzed the facts threadbare arriving at the conclusion that the mere seeking of a clarification from the Board cannot be sufficient justification to withhold payment of service tax. This aspect of the matter has not been considered by the Tribunal. The Commissioner further arrived at the finding that after the clarification by the Board, the Respondent has in fact paid the service tax, but partially only. The Commissioner further arrived at the finding that the plea for seeking clarification from the Board could not be a valid justification for the Respondent to take advantage of their own wrong by now invoking the plea of limitation. The Commissioner has further arrived at a finding of fact from the documents produced by the transporters and also submitted by the Respondent that the transport challans fulfilled all the requirements of the consignment note and that there may have been some additional information in it for the sake of convenience would not take the basic character of a consignment note fulfilled.
The Tribunal, without any discussion of these findings arrived at by the Commissioner, by a cryptic conclusion has held that in absence of any consignment note actually having been issued, no liability of service tax arises. The question in the facts of the case is that once liability has been admitted by the Respondent, can technicalities justify non-compliance with the law when there is no substantive defence. - Case remanded back to tribunal for a fresh decision - Decided against the revenue.
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2016 (2) TMI 594
Cargo Handling Service - whether tribunal did not consider the arguments of the revenue while setting aside the demand - Held that:- Tribunal reflects that the departmental representative did not make any submissions opposing the contentions of the Respondent that the unsustainability of the claims was covered by earlier orders of the Commissioner and precedents of the Tribunal itself. The departmental representative simply supported the impugned order of the Commissioner.
What may or may not have transpired before the Tribunal is best known to the members of the Tribunal itself. The pleadings in the appeal extracted above are delightfully vague and cannot be construed as non-consideration of the argument of the departmental representative. Recitals in the order sheet are sacrosanct so far as the superior Court is concerned with regard to what may or may not have transpired before the Tribunal. If the Appellant is of the opinion that its arguments and contentions have not been considered, the proper remedy for the Appellant is to first move before the Tribunal itself inviting its attention to the same. - Appeal dismissed - Decided against the revenue.
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2016 (2) TMI 581
CESTAT dismissed the appeal for non prosecution - The grievance of the Assessee is that the case was not listed for some hearings and on two hearings, the adjournment sought was granted and that on 21.09.2015, even though written argument was filed, the contentions raised in the written submissions were not taken into account, while passing the final order. - Held that:- These submissions made clearly go to show that the Assessee has got an arguable case. The order passed by the CESTAT with regard to the non-appearance of the Assessee is cryptic and devoid of reasons. The reasons are the soul of the Judgment. The order passed without giving reasons cannot be sustained. - Matter restored before the tribunal.
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2016 (2) TMI 580
Refund of unutilized CENVAT credit on export of services under Rule 5 of Cenvat Credit Rules, 2004 (CCR) - Eligible input services - method of calculation of credit to be refunded - prescribed formula - adjudicating authority while computing the value has deducted the value of SEZ exports from the export turn over (numerator) but retained the SEZ export turn over in the total turnover (Denominator). - Held that:- the appellants are eligible for refund under Rule 5 of CCR on the input services used in the export of service.
The order of the LA rejecting the refund claim by adopting the wrong method of computation is not justified and liable to be set aside to that extent of restriction of the refund claim. We hold that the value of export turnover should be equal to the total turnover and the value of SEZ exports should be included in the export turnover (numerator). Accordingly, the appellants are eligible for the full refund claim.
Decided against the revenue and in favor of assesseee.
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