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Service Tax - Case Laws

Showing 101 to 107 of 107 Records

• 2016 (5) TMI 132
  

  Rejection of refund claim - Amount paid prior to show cause notice - Maintenance and Repair service and other service - Refund claim rejected on the ground that appellants have not proved that the burden of duty has not been passed on to other person and Commissioner (Appeals) ordered the amount to be credited to be Consumer Welfare fund - Held that:- because the appellants showed the amount of ₹ 89,1507- as expenditure in the books of account, they have passed on the burden to their customers and therefore, the refund claim is hit by unjust enrichment. Though the appellants produced the Certificate of Chartered Accountant, it is seen that Commissioner (Appeals) has not considered the Certificate of Chartered Accountant furnished by the appellant, which states that the incidence of tax has not been passed on to other. It is for the department to show by adducing some material that the incidence of tax has been passed on.

  As during the relevant period, the said services were not taxable, the issue held in the appellant's favour. Merely because the amount was shown as expenditure it cannot be concluded that the burden of tax has been passed on to other indirectly. The burden rests upon the department to prove that this amount had been recovered by appellant from buyer as increased price.Therefore, by following the ratio of various judgments the claim of refund is not hit by the bar of unjust enrichment and the order directing to credit the sanctioned refund to Consumer Welfare Fund is therefore not sustainable. - Decided in favour of appellant with consequential relief

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• 2016 (5) TMI 89
  

  Admissibility of Cenvat credit - Service tax paid in respect of various service provided in relation to the maintenance of health of factory workers - Held that:- employees were working in a situation calling for medical necessity and safety, controlling of pollution and health hazards. Law need not necessarily codify each and every item as input used in or in relation to manufacture. The basic principle being use of input "in or in relation to manufacture”, such test is to be applied to consider allowance of CENVAT credit of the service tax paid on the input utilized and having relevance to the output manufactured. The present case is within such parameter of law for which the appellant deserves consideration. Therefore the service tax paid in respect of health care service provided to the factory workers shall be admissible as CENVAT credit. CENVAT credit claimed on guest house has no relevance to output service so the appellant shall not get any CENVAT credit of service tax if any on such count.

  Imposition of penalty - Held that:- as the appellant have succeeded on merits, there shall be no penlaty on health service. So far as guest house maintenance service is concerned, there appears no deliberate intention of appellant to cause any evasion. Therefore, penalty on such issue is also waived. - Decided partly in favour of appellant.

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• 2016 (5) TMI 88
  

  Demand of Service tax alongwith equal amount of penalty - Provider of telecommunication services - Revenue submitted that applicant have short paid service tax in as much as they have not discharged service tax on the gross billed amount for their services, instead paid service tax on the amounts received only.

  Held that:- neither the show cause notice nor the impugned order had elaborated the reason for confirming the differential service tax against the appellant. Also no evidence was brought forward by the lower authority to substantiate that the appellant have realized consideration towards value of taxable services over and above what is declared by them in the statutory returns. In the absence of any such allegation or supporting evidence, the confirmation of demand for service tax by the impugned order is legally not sustainable.

  Period of limitation - Held that:- ST3 returns did indicate different amounts as billed and realized and on this basis it is found that the parties / appellants defense regarding the demand being time barred has as also not been considered even with respect to all details being available in the periodical returns filed by the appellant. Portion of the demands is contested as even beyond 5 years. There is no discussion or finding on this aspect. It is also found that the original authority failed in examining the factual claims made by the appellant regarding the reason for the difference between billed amount and realized amount for the purpose of discharging service tax. We take note that out of 11 half yearly period covered in the demand in respect of 3 half year periods the actual realized amount on which service tax is paid is much higher than the billed amount. No examination or findings has been recorded by the original authority on these details. Therefore, the impugned order cannot be sustained and set aside. - Matter remanded back.

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• 2016 (5) TMI 87
  

  Demand of Service tax - Transport of gas through pipeline - Section 65(105)(zzz) of the Finance Act 1994 - Supply of chlorine through pipeline - Held that:- the appellants have rightly calculated the cost of transportation through pipeline in their assessable value of chlorine for central excise purpose as the place of delivery is pre determined as delivery point of pipeline at the recipient’s end. The appellants are selling chlorine and upon delivery of chlorine through pipeline at the buyers end, the transaction is concluded. The pipeline is laid and owned by the appellants. The said pipeline is used for transport and sale of chlorine to M/s. Gwalior Chemical Industries Limited. So, it is found that there is no services provider and service recipient with reference to transport of goods through pipeline for charging service tax. The transport of chlorine through pipeline is done by the appellant in their own account and the delivery on sale is made to the buyer. The transportation charges are included as a consideration for sale and to discharge central excise duty. Therefore, no justifiable legal basis found to sustain any service tax liability on the appellants. - Decided in favour of appellant

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• 2016 (5) TMI 86
  

  Refund claim - Service tax paid on technical, inspection and certification service in respect of services utilized for export of the goods - Notification No. 17/2009-ST dated 09/7/2009 - Held that:- the invoice as also the shipping bills raised by the appellant were available at the time of raising of the bill by M/s Threads Incorporation Buying Services and could have been very well mentioned in the said invoice. However, the same was not referred in the bill for the services, for the reasons best known to the appellant. Also the particulars mentioned in the said bill so raised by the service provider only refers to the fees for inspection services. There are no other particulars provided in the said bill relating to the cargo, the place of inspection as also the date of inspection. In a nutshell there is nothing in the original invoice so raised by the service provider to link the service of inspection with the export cargo. In such a scenario, we fully agree with the lower Authorities that in the absence of any co-relation and linkage with the services and with the export of the goods, the refund cannot be granted in terms of Notification No. 17/2009-ST.

  Also the appellant interpolated the said bill raised by M/s Threads Incorporation Buying Services by introducing their invoice has alongwith the shipping bills, which in any case were available even at the time of issuance of the invoice but were not mentioned therein. This act of the appellant clearly is a malafide action to mislead the Authorities and is a fraudulent one. In the absence of any particulars having mentioned in the original invoices raised by M/s Threads Incorporation Buying Services, we really failed to understand as to how the said certificate stand issued by the service provider, probably on the basis of their memory. Even in the said certificate, apart from certifying that the invoices raised by them was for the export of the goods, there is no details as to how and at which place and in respect of which goods the said certification /inspection was done.

  As rightly observed by Commissioner (Appeals) that such a certificate can be used for filling up the gaps or as a corroborative material and cannot be made the sole basis for grant of relief to the assessee, especially when there is no such references either in relation to the kind of the goods, the date of inspection and the place of inspection or to any other documentary evidences to show that the said inspection was in relation to the exported goods. Therefore, no justifiable reasons found to interfere with the impugned orders passed by the Authorities below. - Decided against the appellant

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• 2016 (5) TMI 13
  

  Admissibility of Cenvat credit for the period April 2011 February 2012- Service tax paid on construction services - Department contended that as the services have been used for construction of building which is neither for finished goods nor output services, but the output being property, the credit is not admissible. Also from 01.04.2011 the service of construction of a building for civil structure or part thereof has been specifically excluded from the definition of input service but appellant submitted that these services were availed by the appellant and building/construction was completed and handed over before 01/04/2011.

  Held that:- appellant submitted certain documents like letter dated 28/01/2011 issued by M/s Sunshine Constructions, copy of the ledger account, memo for the sanction of Electricity load extension to the newly constructed building and copies of drafts for payment made by appellant towards Building and Other Construction Workers Welfare Cess which establish that the provision of availing the construction service had been completed before 01/04/2011 but that invoice was raised only on 26/04/2011. When the provision of construction service has been completed prior to 01/04/2011 denial of credit only because of the delay in issuing the invoice is not justified as the Board has clarified that credit is available if the provision of the service was completed before 01/04/2011. Therefore, the credit is admissible on these services as the provision has been completed prior to 01/04/2011. - decided in favour of appellant with consequential relief

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• 2016 (5) TMI 12
  

  Cenvat credit - Common Input services belongs to three units but the whole of the credit was availed at one unit - Assessee contended that the units may be situated at different places but are under the common management and the Cenvat Credit has rightly been claimed. - Held that:- no substantial question of law arise out of the order of the Tribunal and the Tribunal has rightly found that all the three units had a common management and no contrary material was placed on record by the Commissioner while holding that there was no nexus in between the three units. By applying the judgment of Gujarat High Court in the case of Commissioner of Central Excise Vs. Dashion Ltd. [2016 (2) TMI 183 - GUJARAT HIGH COURT], the objection of the department therefore that the credit from one unit was utilized for the purpose of duty liability of other unit without pro rata distribution by the input service distributor therefore would not survive in view of no previous restriction of this nature flowing from Rule 7 of the Rules of 2004. The respondent has been able to prove that all the three units are one and the same, have common management and the Revenue has not been able to disprove this fact. - Decided against the revenue

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