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Service Tax - Case Laws
Showing 81 to 100 of 139 Records
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2016 (2) TMI 548
Waiver of pre-deposit - appellant submitted that the requirement of ₹ 1.25 crores with proportionate interest as pre-deposit as directed by the Tribunal was unfair and excessive. - Held that:- After hearing learned counsel for the parties and keeping in view the totality of the facts and circumstances of the case coupled with the fact that the appellant has already deposited the principal amount of ₹ 1.25 crores, in terms of order dated 4.11.2015, the instant appeals are disposed of by making the interim order dated 4.11.2015 absolute. The Tribunal is directed to hear the appeals on merits without insisting for any further deposit.
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2016 (2) TMI 547
Tour operator service - The main plea is that the appellant do not get covered under the term "tourist vehicles" because their vehicles do not meet the specifications laid down in Rule 128 of the Motor Vehicles Rules, 1989. The other contention is that Vehicles Registration Authority grants separate licence under Section 2(7) of the Motor Vehicles Act for contract carriages and under Section 2(43) read with Rule 128 for tourist vehicles. Lastly, the contention is that they would not be covered under Service Tax levy even after 10.09.2004 because they are not engaged in the business of planning, scheduling and organizing or arranging tours.
Held that:- appellant were not engaged in the business of planning, scheduling, organizing or arranging package tour of their own as provided under the new definition of ‘tour operator' service but were adhering to the conditions laid down with various customers. Therefore it cannot be said that they were covered under the first part of the amended definition of ‘tour operator'. As already discussed, the vehicles are also not ‘tourist vehicles' so as to be covered under the second part of the definition. - Demand set aside - Decided in favor of assessee.
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2016 (2) TMI 546
Classification of services - providing services relating to transportation of light Commercial Motor Vehicles & Multi Utility Vehicle, manufactured by M/s Force Motors Ltd. by way of getting them driven by skilled drivers - Support Service for Business or Commerce (BSS) and / or Business Auxiliary Service (BAS) - Held that:- It is seen from the agreement that the appellant was not providing skilled drivers to the service recipient. Indeed, the appellant took the responsibility for transportation of the vehicles.
It is thus evident that the appellant was entrusted to manage distribution and logistics in relation to transport and delivery of the vehicles at the service recipient's depots/dealer's premises. It was not merely making available skilled drivers to the service recipient. Indeed, the drivers were never provided the service recipient but were engaged by the appellant to fulfill its responsibility as per the agreement. Its responsibility as per the said agreement was not merely executory but required proper management supervision and coordination of various aspects relating to fulfillment of its responsibilities as per the said agreement. Therefore the services rendered clearly fell under the scope of managing distribution and logistics.
None of the limbs of BAS covers the impunged activity - the services rendered by the appellant were clearly, unambiguously and fully covered within the scope of managing distribution and logistics and therefore the impugned services were classifiable under BSS and liable to service tax with effect from 1.5.06.
Extended period of limitation - the facts relating to the value of services rendered during the period January 2008 and September 2008 were not available with Revenue and the appellant deliberately did not provide them in a timely manner in spite of repeated and numerous reminders sent over a period of several months. - Once suppression is established as it has been in the present case , Revenue gets a period of 5 years to issue show cause notice as per the proviso to Section 73(1) ibid.
Demand pertaining to the period 1.5.06 to 31.12.07 along with interest and penalty under Section 78 is upheld. - Decided against the assessee.
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2016 (2) TMI 545
Refund of service tax on the basis of credit note - value of services provided (sharing of expenses) earlier got reduced as per the mutual agreement - whether there has been excess payment of tax and whether the bar of unjust enrichment will arise in relation to such excess payment of tax. - The original authority rejected the claim for refund on the ground that such a reduction did not appear to have extended beyond the second component of the compensation, i.e. the share in expenses, in the service agreement.
Held that:- The charges levied from M/s Nicholas Piramal India ltd by the appellant are amply evident in the debit notes pertaining to the quarter April 2007 and September 2007. It cannot but be accepted that the credit note issued in October 2007 is intended to reduce the amounts payable by the client to the appellant to the extent of ₹ 2,93,50,000/-. The contention of the learned Chartered Accountant that any payment can be released only after withholding of tax deducted at source is borne out by the lesser amounts entered in the ledger and the bank statements. We find no flaw in this contention and there is no counter by Revenue that can contest this.
Regarding unjust enrichment - Re-negotiation after initial payments does not, in any way, weaken the claim of the appellant because the fact of reduced net consideration is incontrovertible; the transaction does not extend to a chain beyond the appellant and M/s Nicholas Piramal and therefore, it can be deduced that the incidence of tax has had no scope of being passed on. - Refund allowed - Decided in favor of assessee.
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2016 (2) TMI 486
Claim of refund of service tax paid by them during the period from April, 2011 to March, 2012 on services of constructions of college building - The said refund claim was rejected by the Adjudicating Authority on the ground that the appellant have not produced (a) approved plan of the building (b) they have not produced proof such as MOU or certificate that the construction of building for the purpose of educational, religious, charitable, health, sanitation or philanthropic purpose and not for any purpose of profit, (c) and appellant recovered the amount of service tax by way of issuing debit note.
Held that:- it is clear that building constructed by the respondent is not commercial and industrial construction, therefore does not fall under the category of taxable services, as the same is not used for commercial and industry but it is used for providing education. Therefore service tax paid by the respondent is liable to be refunded. - there is no dispute raised as regard the facts that the respondent by issuing credit note not collected the service tax from the service recipient.
Ld. Commissioner (Appeals) by proper application of mind set aside rejection of refund claim and allowed appeal of the respondent. - Refund cannot be denied - Decided against the revenue.
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2016 (2) TMI 475
Export of services - taxability of ‘management, maintenance or repair' service rendered by the respondent prior to the amendment of Export of Service Rules, 2005 - Assessee submitted that 97% of their services are rendered to foreign clients and are provided by accessing the server/system of the client located outside India through internet and that, to the extent that these services have the effect of making the software functional at the client's end, at least a part of the service is performed outside India. - Held that:- When there is a specific deeming of exports in a particular circumstances that squarely fits the activities of the respondent, reference to the meaning of a specific phrase in the general provision is irrelevant.
Whether it is ‘technical testing and analysis' or ‘management, maintenance or repair' that is performed on software of the clients of the respondent, it is accepted that expert employees sitting in India have to access the servers/computer networks abroad. The performance of these operations is manifested in the efficient and smooth working of the software in the operations of the client. The location of the client cannot be uncoupled from the performance of the service. And as at least some portion of the service is, thereby, rendered outside the country and hence the renders these services outside the ambit of taxation even before 1 st March 2008.
Demand of service tax set aside - Decided in favor of assessee.
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2016 (2) TMI 474
Cenvat Credit - the Commissioner (Appeals) held since the Appellants were maintaining separate accounts "they should not have utilized the CENVAT Credit on those inputs services which were used for providing non-taxable output services." Further there was a condition of restricting the CENVAT credit to 20% as per the provisions of Rule 6 of the CENVAT Credit Rules, 2004. - Held that:- no substantial question of law arises in the present appeal against the impugned order of the CESTAT which has concurred with the finding of both the Assistant Commissioner and the Commissioner (Appeals).
As far as the penalty is concerned, the minimum penalty, as mandated by Section 76 of the Finance Act as it stood at the relevant time, has been imposed. This also does not call for any interference. - Appeal dismissed - Decided against the assessee.
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2016 (2) TMI 473
Validity and scope of Interim order while passing Final Order - whether Tribunal is empowered to pass non-speaking orders while disposing of statutory appeals and while discharging judicial functions - Refund of accumulated cenvat credit - Relevant date in case of export of services - Held that:- it is clear that the Tribunal in all its eagerness to decide the pending cases, in order to reduce the pendency of appeals, has adopted a technique in clubbing nearly 192 cases and passing an interim order on all the issues involved in the batch of cases and the same is applied in the Final Order of the individual cases. We would have appreciated if, the Tribunal had passed the Final Order in one case and the same is adopted in other batch of cases. The scope of Interim Order is very limited. It is temporary and effective only during the pendency of litigation; ceases to exist as soon as the Final Order is passed. No law can be laid down in an interim order.
The procedure adopted by the Tribunal is strange and contrary to the settled principles of law. Passing Final Order, referring to the paragraphs in the Interim Order is not a speaking order. As such, the order passed by the Tribunal is not sustainable. - Matter remanded back.
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2016 (2) TMI 472
Management, Maintenance or Repair of roads (MMR) - Retrospective effect of Notification No.24/2009-Service Tax, dated 27.07.2009 - Held that:- The question as to whether the above Notification would have retrospective effect for the period from 2005 to 2009, was also answered by Notification No.24/2009-Service Tax, dated 27.07.2009, which was issued under Section 93 of the Finance Act, 1994. The special provision for exemption in certain cases relating to service tax on repair of roads was made in Section 97 of the Finance Act, 1994. The Notification No.24/2009 states that the exemption has been extended even for the earlier period from 16.06.2005 to 26.07.2009. - Writ petition allowed - Decided in favor of assessee.
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2016 (2) TMI 471
Taxability of supervision charges collected from the consumer of electricity in outride contribution scheme in relation to power supply. - appellant submits that the services are related to supply and distribution of electricity to the consumer. This services have been exempted from retrospective effect for the period upto 21st June 2010 vide Notification No. 45/2010-ST dated 20/7/2010 issued under Section 11(C) of Central Excise Act, 1944 therefore demand does not sustain.
Held that:- As per the facts of the present case it is undisputed that so called consulting engineer Service is provided in relation to supply and distribution of electricity to the consumer, therefore in our considered view the service in question is also covered under the exemption notification No. 45/2010-ST dated 20/7/2010. - Demand set aside - Decided in favor of assessee.
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2016 (2) TMI 446
Refund - tax paid on input services utilized for export services - failure to submit the relevant documents and follow the procedures as prescribed - Rule of the Export of Service Rules, 2005 - Held that:- A plain reading of the notification indicates that taxable services has to be exported in terms of Rule 3 and payment of export of such taxable services has to be received in India in convertible foreign exchange and the duty/tax has been paid on input or input services. All these contentions are satisfied in this appeal filed by the appellant. - when it comes to substantial benefit the absence of specific embargo in the rules, the benefit should not be denied to an assessee.
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2016 (2) TMI 445
Taxability of repairing activity undertaken by the appellant of transformers manufactured by other manufacturers - maintenance or repair services - Held that:- the requirement of statute prior to 15.06.2005 for taxability of the services rendered is very clear i.e. that the maintenance of repairs has to be provided by any person under "maintenance contract" or agreement. Undisputedly in the case in hand for the entire period, there was no maintenance contract entered by the appellant with the State Electricity Board for repairs of their transformers. - The tender process through which the appellant got the contract for repairing the transformers is only a "work order" and contract for repair and it is not a "maintenance contract". - Service Tax was not leviable during the relevant period - Decided in favor of assessee.
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2016 (2) TMI 444
Cenvat Credit - duty paying documents - computer generated invoices were not signed by the service provider - Revenue contended that Rule 4A of the Service Tax Rules 1994 categorically prescribed that the invoices/challans should be signed by service provider. - Held that:- the condition of Rule 9(2)were fulfilled. It is also noticed that on the identical situation, the Commissioner of Central Excise allowed the credit in respect of the other assessee - However, it is required to examine the documents and therefore the matter is sent back to the Adjudicating Authority to decide afresh after considering the documents and other facts in so far as lose of original invoices due to flood. - matter remanded back - Decided partly in favor of assessee.
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2016 (2) TMI 443
Cenvat Credit - eligibility of input services, inputs and capital goods availed for the purpose of construction of immovable property - output service of renting of immovable property - Held that:- applicant has made out a strong case for full waiver of pre-deposit of the confirmed demand alongwith penalties. - Stay granted.
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2016 (2) TMI 417
Cenvat Credit - Scope of input services utilised to provide Renting of Immovable Property as Output Services - payment of service tax on construction of premises which he intended to put to use as commercial complex and rented out the premises to various entities - Held that:- tax liability on renting of immovable property will not arise unless the immovable property comes into an existence, such immovable property will be in the nature of constructed building/warehouse. - unless the commercial complex is constructed and completed in all respects, the same could not be rented out by the appellant is a common sense - credit allowed - Decided in favor of assessee.
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2016 (2) TMI 392
Valuation - inclusion of handling charges @ of 1% of the price of spares used in the repairing motor vehicles - Held that:- s the Commissioner (Appeals) finding that the handling charges were in relation to sale of goods and not in relation to provision of service is sustainable; there was no service involved in sale of such spares across the counter. - such handling charges were held to be not liable to service tax. - No demand - Decided in favor of assessee.
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2016 (2) TMI 370
Refund - unjust enrichment - the impugned amount was deducted by Revenue from the refunds of Bharat heavy electricals Ltd in terms of the powers under section 87 (d) of Finance Act 1994 and BHEL recovered the said amount from the appellant by deducting the same from the payments due to the appellant for providing security services - Held that:- . It is also not in dispute that by virtue of the above referred exemption order issued by the Ministry of Finance the respondent was not liable to pay the said amount service tax which was recovered by adjustment from the refunds of Bharat Heavy Electricals Ltd. which in turn recovered it from the respondent. Consequently it clearly became eligible for the refund of the said amount as the burden was borne by the respondent.
Further Bharat Heavy Electricals Ltd pays crores of rupees of duty in cash and therefore it really is of no consequence whether the amount of refund was to be given to it by credit to its Cenvat account in cash because this issue becomes important only in those cases where the assessee does not pay any duty in cash and is able to discharge all its liabilities out of CENVAT credit. - Refund allowed - Decided against the revenue.
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2016 (2) TMI 369
Classification of services - Business Auxiliary Service (BAS) or not - assessee required to verify the details relating to residential address and /or employer office address or any other details in respect of the applicants seeking financial assistance from various banks and in respect of which these banks sought such verification - Held that:- verification of correctness, fairness and authenticity of information furnished by those seeking loan from Bank would not be classifiable under BAS - Demand set aside - Decided in favor of assessee.
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2016 (2) TMI 368
Tour Operator services - whether the vehicles operated by the appellant conform to the definition of tourist vehicle as provided in terms of Section 2(43) of the Motor Vehicle Act read with Rule 128 of the Central Motor Vehicles Rules. - Held that:- to be covered under the category of 'Tour Operator Service', the vehicles used should meet the specifications of tourist vehicle as specified under Rule 128 of the Central Motor Vehicles Rules. - the buses do not conform to the specifications in terms of Rule 128 of the Central Motor Vehicles Rules. - No demand - Decided against the Revenue.
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2016 (2) TMI 367
Security Agency Service - appellant submitted that demand was raised merely on the amount as shown in the ledger account, without taking into consideration the actual receipt. - reimbursement expenses including salaries and other expenses - Held that:- The matter is remanded to the Adjudicating authority to decide afresh after considering the documents and the submissions of the Appellant. In this context, the learned Advocate undertakes to appear before the Adjudicating authority to submit the documents and appear before the Adjudicating authority within two months from the date of receipt of this order. - Matter remanded back.
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