|
Advanced Search Options
Service Tax - Case Laws
Showing 1 to 20 of 107 Records
-
2016 (5) TMI 1497
Business Auxiliary service or not - Buy and sell of Compressed Natural Gas (CNG) - HELD THAT:- Registry to process the matter for being listed before the Hon'ble Court as per rules.
-
2016 (5) TMI 1367
Extended period of limitation - the decision in the case of M/s Diamond Power Infrastructure Ltd. And Shri Amit Bhatnagar Versus Commissioner, Central Excise & Service Tax, Vadodara-II [2015 (10) TMI 2344 - CESTAT AHMEDABAD] contested, where it was held that The demand period is from May 2009 to May 2010, whereas the SCN was issued on 11.08.2011, which is clearly beyond the normal limitation period of 1 year and is required to be set aside - Held that: - before the Larger Bench pronounced its judgment in the year 2010, different Benches of the Tribunal had given conflicting decisions. That being the position, there is no error in the view of the Tribunal not permitting the Department to invoke larger period of limitation - appeal dismissed - decided against Revenue.
-
2016 (5) TMI 1329
Refund claim - THC charges - bills of lading charges - origin haulage charges - repo charge - denial on the ground that services are not port services - Non submission of proof of payment of service tax on GTA services - Proper invoice not submitted - Held that: - the issues are covered by the decision in the case of Suncity Art Exports & Ors. [2014 (11) TMI 251 - CESTAT NEW DELHI], where on similar issue refund was allowed - appeal allowed - decided in favor of appellant.
-
2016 (5) TMI 1323
Supply of tangible goods (STGU) - transfer of possession and effective control of the tankers - import of services - Levy of service tax on reverse charge basis - Section 65(105)(zzzzj) of the Finance Act, 1994 - extended period of limitation - appeal was filed after a delay of 385 days - vacation of stay sought for - the decision in the case of PETRONET LNG LTD Versus COMMISSIONER OF SERVICE TAX [2013 (11) TMI 1011 - CESTAT NEW DELHI] appealed against - Held that: - the respondent is a conglomerate of four Public Sector Undertakings. In view of the fact that the appellant does not appear too keen on an interim order from this Court but was compelled to apply for an interim order, also there is a delay of 385 days in filing the appeal and also the respondent is a conglomerate of four Public Sector Undertakings, the interim stay granted by this Court on 8th January, 2016 ought to be vacated.
-
2016 (5) TMI 1289
Rejection of refund claim - N/N. 41/2007-ST - THC charges - bills of lading charges - origin haulage charges - repo charges - whether denial of refund claim justified on the ground that the services are not port services and proof of payment of GTA services and proper invoices not submitted? - CHA services - as per OIO, description of goods not mentioned in the invoices issued by CHA - reliance placed in the decision of Shivam Exports and others vs. CCE, Jaipur, [2016 (2) TMI 259 - CESTAT NEW DELHI] and M/s. SRF Ltd. vs. CCE Jaipur [2015 (9) TMI 1281 - CESTAT NEW DELHI] - Held that: - the issue of the cases of Shivam Exports and SRF Ltd. is squarely similar to the case in hand and decision in the case apply. It was held in the cases that refund of service tax paid on terminal handling charges, repo charges and Bill of lading charges and haulage charges are available to the exporters. Also it was held that if the documents produced are debit notes and giving all the details and particulars as required under Rule 4A of the STR 1994, the refund cannot be denied on the technical ground that the documents are not invoices but debit notes.
Cleaning activity - Courier services - the appellant is not pressing for refund of service tax on cleaning activity and technical inspection and certification service - refund disallowed.
Following the decision of the cases mentioned, the refund allowed - appeal allowed - decided in favor of appellant.
-
2016 (5) TMI 1245
Cenvat Credit - Nexus between output service and input service - Whether the Tribunal did not examine the aspects as to the output services could be said as service or not and whether the Tribunal ought not have remanded the matter - Held that:- at the relevant point of time, the service was not a service reckoned for the purpose of CENVAT credit followed by the decision of Karnataka High Court in the case of PR. Commissioner of Service Tax Versus Mportal (India) Wireless Solutions Pvt. Ltd. [2016 (4) TMI 409 - KARNATAKA HIGH COURT] but the Tribunal did not consider the said aspect. Under the circumstances, we do not find that the matter would call for interference as sought to be canvassed. Also the Tribunal has relegated the matter for finding/ascertaining the nexus between input service and the output services which would be required to be examined by the authorities. When the Tribunal was satisfied that the matter deserves further examination on facts for finding out the nexus, by exercise of discretion, it cannot be said such exercise of discretion is perverse. As there is no substantial questions of law arise for consideration, no case is made out for our interference. - Decided against the revenue
-
2016 (5) TMI 1244
Imposition of penalty - Section 78 of the Finance Act, 1994 - Banking and other Financial Services and Sponsorship Service - received from foreign firms who do not have any office in India - liable to pay tax under reverse charge - Held that:- in the instant case the non-payment of tax was on account of bonafide belief and the Revenue had conducted Audits which would go to show that there was in fact no suppression of facts. On the other hand it is found that the judgement of the Tribunal in the case of Atwood Oceanic Pacific Ltd. -Vs- CST [2012 (12) TMI 425 - CESTAT, AHMEDABAD] is more akin to the facts of the present case and therefore the Commissioner (Appeals) has rightly applied the said judgement for waiver of penalty under Section 78. Moreover a mere pendency of Civil Appeal in Atwood's case before the Supreme Court is no ground not to follow a binding precedent. One more aspect to be noted is that during the relevant period, Section 80 was in operation which does not figure in the Central Excise Act, where there is a discretion not to impose penalty when reasonable cause is shown. Therefore, the ends of justice would be met by upholding the order of the Commissioner (Appeals) for the reasons stated above. - Decided against the revenue
-
2016 (5) TMI 1217
Invokation of extended period of limitation - Section 80 of the Act - Imposition of penalty under Section 78 of the Act - Business Auxilliay Service - Appellant was not aware of service tax liability and were under the bonafide belief that ICICI bank will take care of tax liability, if any - Held that:- from the facts, it is clear that appellants are aware of the tax liability and did pay some amounts towards service tax under BAS category. It goes to show that they have chosen not to report the full receipt of money to discharge the tax liability. Further, the appellant’s plea that their payment of the sub-agents should be deducted from the gross value is also not supported by any legal provisions. To invoke the provisions of Section 80 the appellant should show reasonable cause for non-payment of service tax in time but no such reasonable cause could be established in the present case. The taxability of the service rendered by the appellant is not subject matter of doubt or interpretation during the material time. In fact the Board’s clarification issued on 20/06/2003 itself makes it clear that there is no room for doubt for the period subsequent to the said clarification. - Decided against the appellant
-
2016 (5) TMI 1206
Imposition of penalty - Section 77 and 78 of the Act - Transport of goods by road and scientific and technical consultancy services - Technical testing done by a foreign service provider - Voluntarily paid service tax along with interest prior to issuance of SCN - Held that:- with regard to imposition of penalty under section 77, I find that department is correct in demanding the tax but the appellant had contended that penalty under section 77 ought not to be ₹ 10,000/- but only ₹ 5000/- as the period of dispute is prior to enactment of Finance Act, 2011. Penalty under section 77 is liable to be upheld accordingly. - Decided partly in favour of appellant
-
2016 (5) TMI 1156
Whether summons issued by the respondent-authority is devoid of any merit and substance - right to be accompanied by the Lawyers - Petitioner is neither a Director nor a post holder in M/s Netshelter Marketing Limited - Respondent contended that there are several allegations against the petitioner. Several cheques vouchers of payment of service tax have been prepared. Huge amount of cenvat credit has been availed to the tune of ₹ 3.20 crores approximately and so far investigation which has been carried out shows involvement of this petitioner and other persons who are avoiding, coming to the respondent authority under one or other pretext.
Held that:- no reason found to entertain this writ petition mainly for the various facts and reasons. Therefore, in view of those facts and reasons, this writ petition is hereby, dismissed with a cost of ₹ 1,00,000/( Rs. one lakhs only). The amount shall be deposited by this petitioner within a period of fifteen days from today before the Member Secretary, Jharkhand State Legal Services Authority, Nyaya Sadan, Doranda, Ranchi. - Decided against the petitioner
-
2016 (5) TMI 1125
Eligibility of Cenvat credit of service tax - outward freight charges involved for clearance of finished products from the factory and up to the delivery effected at the customer's end/premises as per contractual terms agreed upon between the parties - Non-compliance of CBEC Circular dated 23.08.2007 but no evidence for the same - period involved from January 2005 to November 2007 and December 2007 to November 2008 - Held that:- in view of the decision of Karnataka High Court in the case of CCE Vs. ABB Ltd. [2011 (3) TMI 248 - KARNATAKA HIGH COURT] which is an uphelded decision of Larger Bench of the CESTAT reported in [2009 (5) TMI 48 - CESTAT, BANGALORE], it has been clearly upheld that the service tax paid on GTA services utilized for outward transportation of final product is allowable for the period prior to 01.04.2008 as per the definition of input services as contained in Rule 2(l) of the Cenvat Credit Rules and this appeal pertains to the period prior to 01.04.2008 only and the period after 01.04.2008 the appellant himself has reversed the credit of cenvat on GTA. Therefore, the impugned order is not sustainable. - Decided in favour of appellant
-
2016 (5) TMI 1079
Extended period of limitation - Contract for outdoor catering services - non-registration and non-payment of tax - Held that:- The show cause notice merely states that the appellant had willfully suppressed the facts of provision of taxable service without elaborating as to what was the suppression. In para 8 of the notice, with regard to the proposal for penalty under section 78, it has been alleged that the appellant willfully suppressed the taxable value with an intention to evade payment of service tax. There is no elaboration or finding substantiating the said allegation. It is settled law that mere allegation unsupported by reasonable evidence thereof is per se unsustainable.
The demand made under cover of extended period of limitation deserves to be set aside. This principle is equally applicable to the imposition of penalty under section 78 of the Finance Act.
The invocation of extended period is unsustainable as the non-registration and non-payment of tax is a mere omission not traceable to guilty mind, a pre-requisite for such invocation. - Demand set aside - Decided in favor of assessee.
-
2016 (5) TMI 1078
Rejection of Voluntary Compliance Encouragement Scheme, 2013 (VCES) - VCES was initially accepted - Jurisdictional Commissioner invoking the powers under Section 111 of the Finance Act, 2013 initiated proceedings against the appellant alleging that they have made a substantially false declaration to avail the benefit under VCES. - Held that:- what is lacking is that the Department is not able to clearly bring out what are all the construction activities liable to service tax and to whom such services were rendered. The proceedings concluded by the impugned order could not bring out the details of taxable services except to state that the value of services as per P&L account/Income Tax return is much higher than the value of services declared under VCES. Apparently, this assertion by itself will not lead to the conclusion of non-payment of service tax and also to correct quantification of such non-payment, if any. At the same time it has to be noted that the appellants made simply assertions regarding non-taxable services without submitting any supporting evidence. They also claimed various abatements during the material period which requires to be justified with supporting evidence.
The matter requires to be re-looked keeping in view the above observations for a fresh decision. - Matter remanded back.
-
2016 (5) TMI 1077
Entitlement to the credit of service tax paid on Outdoor Catering Services and Staff Transport Services - Held that:- Since both the services on which cenvat credit has been denied by the impugned order are held to be input services by decisions of various High Courts, therefore in view of the settled position of law both the services i.e. Outdoor Catering service as well as Staff Transport Service fall in the definition of "input service" and the credit taken by the appellant has wrongly been denied by the respondent. See CCE Vs. Ultratech Cement Ltd [2010 (10) TMI 13 - BOMBAY HIGH COURT]
-
2016 (5) TMI 1076
Valuation of taxable services where the benefit of abatement claimed - inclusion of value of the free supplies provided by the service recipient in the assessable value of the taxable service - claim of abatement of 67% in terms of Notification No. 18/2005-ST/ 1/2006-ST - cenvat credit on capital goods availed - benefit of Composition Scheme under works contract service on-going from prior to 01.06.2007. - Held that:- switch over to Composition Scheme w.e.f. 01.06.2007 is not permitted in respect of projects on going from before 01.06.2007 - In the light of the analysis above, we set aside the impugned demand to the extent it arises as a consequence of denial of benefit of abatement of 67%. However the demand on account of the appellant not being eligible for the composition scheme (under WCS) in respect of projects which were ongoing from prior to 01.06.2007 is sustainable - Matter remanded back for quantification of tax liability - Decided partly in favor of assessee.
-
2016 (5) TMI 1055
Validity of SCN and adjudication order - Held that:- as rightly pointed out by the CESTAT, the Department itself is unclear whether the service performed by the Respondent was “management maintenance or repair service” or “Erection, Installation and Commissioning Services”. This vagueness goes to root of the matter. Therefore, the court concurs with the CESTAT that the SCN as well as the Adjudication Order are vague as to the taxable service performed by the Respondent and, therefore, no substantial question of law arises for determination by the Court. - Decided against the revenue
-
2016 (5) TMI 1054
Waiver of pre-deposit - Demand of Service tax - Construction Service - contravention of the Circular dated 24th August, 2010 issued by CBEC clarifying that the activity had to be treated as a works contract - Issue pointed out of the exigibility of the works contract executed by the Petitioner to service tax by wrongly classifying it as ‘construction service’, has not been taken note of by the CESTAT - Held that:- in a similar appeal before this Court by an entity of the Appellant Group, this Court by an order reported in [2015 (10) TMI 2484 - DELHI HIGH COURT] noted a similar contention and remanded the matter to the CESTAT for consideration of the Appellant’s application for waiver of the pre-deposit afresh in accordance with law. Therefore, in view of the fact that the above contentions have not been considered by the CESTAT when it passed the impugned order, the impugned order is set aside and revives the stay application before the CESTAT for a fresh decision in accordance with law. - Appeal disposed of
-
2016 (5) TMI 1053
Refund claim - Allowability of input service Cenvat credit - Claim was not in accordance with foreign exchange realisation - Held that:- Learned Commissioner (Appeals) has not at all examined what was the issue before him in Appeal No.21/2013 but has abruptly come to the conclusion on a different premise holding inadmissibility of certain input credit. Therefore, the matter is remanded to him re-examine the controversy before him as emanated from the Order-in-Original and upon hearing the appellant shall pass appropriate order.
Clearing & Forwarding Agency Services and Membership Fees - Held that:- by considering the necessity of Carrying & Forwarding Agency Service, in the course of import and export, the appeal is allowed on this count disallowing CENVAT credit on Membership Fees, which has no connection to the output service provided and appellant is entitled to the refund which shall be recalculated by the adjudicating authority, taking the disallowance aspect hereby ordered.
Air Travel Agency Service, Chartered Accountant's Service, Insurance (Motor Vehicle) and Customs House Agents Service - Held that:- So far as the Air Travel Agency and Chartered Accountant's service is concerned, there shall be no denial of CENVAT credit, for the reason that the appellant being an importer and exporter of services, would be requiring service of Air Travel Agency and also certification by Chartered Accountant in respect of the foreign exchange receipts as well as other aspects. So far as the insurance on the motor vehicle is concerned, the period in question being Apr.-12 to Jun.-12 and amendment to the law has been made from 01.04.2011. Learned adjudicating authority shall re-examine the admissibility of CENVAT credit on such services in accordance with law. Since no finding has been made by both the authorities below, in their orders, appeal is remanded on this limited count to examine that aspect.
Management, maintenance or repair service - Held that:- the adjudicating authority noticed that the same relates to supply of foods and ineligible tangible goods. He did not examine this aspect thoroughly for which he himself was under confusion without specifying the amount of credit allocable to this service and evidence if any before him. However, considering that remanding back the matter for a small amount of credit shall serve no useful purpose but shall result in waste of time and public money, the appeal on such count is allowed.
Disallowance of Cenvat credit - Invoice carried the defective address - Held that:- It is relevant for the law that if the service has been utilized, the authority should cause enquiry as to the genuineness of the service provider and allow the same provided the tax paid by appellant had gone into the treasury. Therefore, it is left to the authority to enquire who was the service provider in respect of credit of ₹ 38,811/- and result of the enquiry confronted to the appellant for rebuttal. Upon hearing the appellant, appropriate order shall be passed.
Works contract service - Held that:- Learned adjudicating authority did not examine what was the works contract service availed by the appellant. Therefore, he has to examine the relevancy of such service and hearing the appellant thoroughly shall pass appropriate order.
Business auxiliary service (membership fee) - Held that:- it does not appeal to common sense as to relevancy thereof to allow CENVAT credit. Accordingly, no claim thereon shall be admissible.
Insurance auxiliary service (motor car) - Held that:- the authority has not at all examined as to relevancy and evidence thereof to declare that ineligible input. Therefore, he should examine the relevancy of the services and its nexus as well as integral connection to the output service and hearing the appellant shall pass appropriate order.
Defective invoices - Held that:- the authority has not at all examined any aspect thereof. The disallowance being limited to ₹ 444/- on two counts, the authority shall grant opportunity to the appellant to rectify the defect and pass appropriate order upon hearing the appellant.
Validity of adjudicating authority order - not at all examined the justification for disallowance of CENVAT credit on the respective services - Held that:- in absence of any examination by the adjudicating authority it is premature to pass any order as to justification for eligibility thereof. Therefore, learned adjudicating authority shall rehear the appellant on each and every aspect of the disallowance and hearing the appellant both on facts and evidence, shall apply the law and pass a reasoned and speaking order.
Maintenance and repair service (gardening) - Held that:- it does not appeal to common sense as to relevancy thereof to the output service. Therefore, no CENVAT credit thereof shall be admissible.
Common area / parking charges and supply of food and tangible goods - Held that:- for no description and examination of evidence and application of law, those items shall receive scrutiny of the adjudicating authority for passing reasoned and speaking order granting fair opportunity of hearing to the appellant.
Legal consultancy service - Held that:- CENVAT credit thereon cannot be denied since that is permissible being inextricably connected with the business operation.
Business auxiliary service (not used for output service) - Held that:- shall receive the scrutiny of the adjudicating authority for no examination done by that authority and hearing the appellant, he shall pass appropriate order.
Parking charges, supply of foods and tangible goods and interior decoration service, civil work - Held that:- it would be necessary for the adjudicating authority to say the reason for his disallowance since the order is cryptic and unreasoned. Therefore, appellant is entitled to reasonable opportunity of hearing and considering the appellant's pleading as well as evidence, the authority shall pass order in the re-adjudication proceeding.
Business Auxiliary Service - Held that:- for no reasoning stated, learned adjudicating authority shall scrutinise the same and hearing the pleading of the appellant shall pass appropriate order in accordance with law. - Appeal disposed of
-
2016 (5) TMI 1052
Computation of interest on service tax not paid or delayed paid - Revenue contended that Commissioner ought not to have adjusted the service tax payable on the import with that paid on the output service. - Held that:- no serious infirmity is found in the view taken by the Commissioner that adjustment of service tax payable in the import of services as well as paid on the output service can be permitted as long as the liability is adjusted within the same service payment cycle. However, we feel that the computation needs to be factually checked to arrive at the correct value of import of software services and the total service tax liability on such import. The liability of payment of interest under Section 75 also needs to be re-checked in the light of the Revenue's appeal. For this purpose, we consider it necessary to remand the matter to the adjudicating authority who is directed to pass orders expeditiously.
The issue of classification of the imported software can also be considered in the light of decision of CESTAT Bangalore brought to our notice by the appellant-assessee. - Appeals disposed of by way of remand
-
2016 (5) TMI 1051
Waiver of pre-deposit - Business arrangement between DDA and applicant - Construction of residential complex - Service tax liability along with penalties - Section 77 and 78 of the Finance Act, 1994 - Held that:- the whole issue of tax liability and exact quantification requires a close scrutiny and detailed examination at the time of deciding the appeal, the discussion leads to the conclusion that the appellant could not make out a case for full waiver of pre-deposit of adjudicated dues for admitting the appeal. No financial hardship has also been pleaded at the time of hearing. Hence, keeping in view the factual and legal position, we find that it will be fit and proper to direct the appellant to make a pre-deposit ₹ 30,00,00,000/- (Rupees Thirty crores only) within a period of 8 weeks to consider the admission of appeal in terms of Section 35 F of the Central Excise Act, 1994 read with Section 83 of Finance Act, 1994. On payment of such pre-deposit within time, there shall be a stay of recovery of remaining dues as adjudicated by the original authority. - Waiver not granted, stay petition disposed of
........
|
