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Service Tax - Case Laws
Showing 21 to 40 of 107 Records
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2016 (5) TMI 1002
Period of limitation - Entitlement of refund claim - Cenvat credit on input Service tax paid prior to its registration - no time limit prescribed by Rule 5 of Cenvat Credit Rules, 2004 to refund the un-utilized cenvatable credit - Held that:- so far as the grant of Cenvat credit which pertains to the pre-registration period is concerned, Hon’ble High court of Karnataka in the case of mPortal India Wireless Solutions Pvt. Ltd. Vs. CST, Bangalore [2011 (9) TMI 450 - KARNATAKA HIGH COURT] has laid the law. Therefore, Respondent may not be denied such credit subject to scrutiny of genuiness thereof. The Hon’ble High Court in its judgment has held that the registration is not mandatory to fulfil the statutory grant in absence of any provisions to the contrary.
In so far as the conditions of grant of refund is concerned, Rule 5 prescribes certain conditions which are safeguard in nature. We have no difference to state that the Notification No. 5/2006-CE (NT) dated 14.03.2006 as amended by Notification No. 13/2007 -CE (NT) dated 01.03.2007 shall be applicable to the case of Respondent. The condition prescribed by 3(b) in the appendix of Notification is necessarily to be fulfilled along with other conditions prescribed therein. Therefore, the Ld. adjudicating authority upon remanded of this matter shall carry out scrutiny of refund claim on above terms as well the conditions prescribed by Notification concerned. - Matter remanded back
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2016 (5) TMI 1001
Availment of Cenvat credit - Telephone/mobile phone and courier service - period involved is August 2013 to March 2014 - Held that:- the issue stands already decided by this Bench in the appellant's own case reported in [2016 (5) TMI 906 - CESTAT CHENNAI], therefore, by following the same the appellants are entitled to credit on telephone/mobile phone and courier services for the subsequent period also. Hence, the demand and penalty is set aside. - Decided in favour of appellant with consequential relief
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2016 (5) TMI 1000
Waiver of pre-deposit - Demand of Service tax - Errection, commissioning and installation service (65 (105) (zzd) of Finance Act, 1994 - Non-eligibility for abatement under Notification No. 1/2006 inasmuch as it did not supply any plant, machinery or equipment nor had it erected, commissioned or installed such plant, machinery or equipment - Held that:- col.3 of the table appended to Notification No. 1/2006-ST providing for 67%, covers erection commissioning or installation under a contract for supplying a plant, machinery equipment and also erection, commissioning or installation of such plant, machinery or equipment. Thus, it covers erection, commissioning or installation of plant machinery and equipment even if not supplied by the service provider and 67% abatement will be available if the value of such plant/machinery equipment is included in the assessable value in accordance with Col.4.
It is seen prima facie the appellant's contention gains traction that the insulation becomes part of the equipment in asmuch as without such insulation the plant or machinery or equipment cannot function and that is the reason why as per column 4 not only value of plant, machinery or equipment but also value of parts and other material sold is to be included in the assessable value for the purpose of abatement. In addition, prima facie the appellant's contention that the demand is time barred because there was no willful misstatement of suppression of facts and the appellant had included the value of the material in the assessable value before claiming abatement is not without basis. Thus, prima facie, the appellant has a fairly strong case in its favour and therefore deserves complete waiver of pre-deposit. - Decided in favour of appellant
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2016 (5) TMI 999
Refund claim - Rule 5 of the Cenvat Credit Rules, 2004 - quarter July 2012 to September 2012 - Air Travel Agent's Service, Rent-a-cab Scheme Operator's Services and Telecommunication/Internet Telecommunication services - Cenvat Credit availment of July to September 2012 was wrongly shown in the S.T.3 Return for the quarter April to June 2012 for which no revised claim was filed - Held that:- even though the receipt of input is in the different period and credit was availed in the subsequent period, the period when the credit was availed is the relevant period and not the period when input/input service was received. In the present case also, it is a claim of the appellant that the Cenvat Credit was availed in July 2012 to September 2012 and not prior to that. The issue of Cenvat Credit/refund in respect of Air Travel Agent Service and Rent-a-cab service, the issue is kept open however the credit/refund in respect of telecommunication service was denied on the ground that the appellant have taken credit twice and the appellant is not contesting the same, hence the same is upheld. The matters are remanded to the adjudicating authority to pass a fresh de novo adjudication by taking into consideration my above observations. - Appeals allowed by way of remand
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2016 (5) TMI 998
Period of limitation - Refund claim - filed after one year from the relevant date - Service tax paid on the output service - Business Auxiliary Services (Visa Services) - Held that:- in view of the Hon'ble Supreme Court judgment in the case of Assistant Collector of Customs Vs. Anam Electrical Manufacturing Co. [1997 (1) TMI 80 - SUPREME COURT OF INDIA] and jurisdictional Bombay High Court judgment in the case of Andrew Telecom (I) Pvt. Ltd. Vs. Commissioner of Customs & Central Excise Goa [2014 (4) TMI 507 - BOMBAY HIGH COURT, refund claim is covered by Explanation (B) (f) of Section 11B (1) of Central Excise Act 1944, as applicable to service tax vide Section 83 of the Finance Act, 1994, refund claim is not sustainable as it was filed beyond 1 year from the date of payment of service tax. Since refund of any amount is covered by Section 11B and there no other provision, this Tribunal being a creature under the Central Excise/Customs Act cannot go beyond the statute and therefore cannot relax the time limitation provided under the statute. As per my above discussion and settled legal position, I am of the considered view that the refund claim being filed after one year is hit by limitation and therefore correctly rejected by the lower authority. - Decided against the appellant
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2016 (5) TMI 944
Imposition of penalty - Section 78 of the Finance Act, 1994 - Construction of Complex Services - Appellant prayed that financial difficulty is a reasonable cause for non-deposit of the tax with the Revenue and as such Section 80 should be invoked - Held that:- We really fail to understand that how the collected amount, which was required to be deposited, can lead to any financial hardship on the part of the assessee inasmuch as it was collected amount only which was required to be deposited. Instead of depositing the same, the appellant have retained it for their own financial gains. We can appreciate financial difficulty to some extent if the said service tax was required to be deposited by the appellant from their own pocket. Even in that case, the appellant was under obligation to reflect their liability to the Revenue, by taking a registration and filing ST-3 returns. The use of the amount collected by the appellant from their customers in the name of the service tax, instead of depositing the same with the Service Tax Department, clearly reflects upon the malafide intention of the assessee. In such a scenario, the provisions of Section 80 cannot be invoked, in as much as the said section speaks of a reasonable cause, which is bound to be bonafide cause. The fact that service tax was being collected by the appellant from their Customers reflects upon their knowledge that the services being provided by them attract service tax. Pocketing of the said collected amount is indicative of the appellant's malafide to divert the exchequer's legitimate amount for their own financial gains, thus making them liable to penalty. - Decided against the appellant
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2016 (5) TMI 943
Recovery of interest - Section 73B of the Finance Act, 1994 - Collected Service tax from the transporters when no service tax was payble and not deposited to the Government - later amount was deposited with the government - Held that:- a close reading of the section 73B indicates that the situation as covered under sub-Section (1) of Section 73A and determination of liability under sub-Section (4) of the said section were only covered by the interest provision. Apart from the fact that no proceeding required to have been initiated against the appellant for recovery of amount not paid to the Government, the proceedings in this case apparently covered the amount in terms of sub-Section (2) of Section 73A not sub-Section (1) of the said section. Even comparing with the similar provisions in Central Excise Act, 1994 it is apparent from the wordings of Section 73B that amount covered under Sub-Section (2) of Section 73A is not covered by Section 73B. Even otherwise the fact remains that proceedings under sub-Section (3) and determination there upon under sub-Section (4) is not warranted in the present case as the amount has already been remitted to the Government. Therefore, the impugned order in so far as it relates to interest demand is not sustainable.
Imposition of penalty - section 77(2) of the Finance Act, 1994 - Held that:- the appellant have not remitted the amount collected representing service tax forthwith to the credit of Central Government. The payment was made only after follow up by the Department and as such, the penalty in such situation is justifiable. Accordingly, the payment of amount representing service tax and the penalty are upheld. - Appeal disposed of
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2016 (5) TMI 942
Entitlement of Cenvat credit and consequential refund - Rule 5 of Cenvat Credit Rules, 2004 - Works Contract Services and short term accomodation service - maintenance of office equipment and building - Works contract services are excluded from the definition of input service under Rule 2(l) ibid and accommodation is for employees of the company - Held that:- it is clear that Works Contract Services are excluded only when it is used for construction service, whereas in the present case input services were used for maintenance of office equipment and building therefore, this particular works contract service does not fall under the exclusion category in the definition of input service, therefore works contract service in the present case is input service and eligible of refund under Rule 5. As regard the service of short term accommodation and works contract service, since the appellant has withdrawn the claim of refund on this, the rejection of refund on services of short term accommodation and service involved in the said invoice of M/s. Benchmark Engineering Pvt Ltd stand upheld.
Entitlement for interest on delayed sanctioned of refund claim - Held that:- if there is delay beyond three months from the filing of refund, the department is duty bound to grant the interest for the delayed period in sanctioning the refund. The sanction of refund is as per the prescribed rate of interest under Section 11BB of the Central Excise Act supported by the judgment of Supreme Court judgment of Commissioner of Central Excise Vs. Reliance Industries Ltd. [2011 (7) TMI 1141 - SUPREME COURT]. It is found that there is absolutely no reason for not granting the interest on the delayed sanction of refund claim. I therefore direct that appellant shall be granted interest under Section 11BB. - Decided partly in favour of appellant
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2016 (5) TMI 941
Refund claim - Notification No. 41/2007-ST and 17/2009-ST - Claimed drawback in respect of export of goods and at the same time they have claimed refund under Notification No. 41/2007-ST - period January, 2008 to September, 2008 - Held that:- as per the notification 41/2007 there is a condition that refund claim under this notification was not admissible if the assessee claims the drawback in respect of export of goods. This condition was removed w.e.f. 18/11/2008 therefore the condition of non claiming of drawback was prevailing during the relevant period therefore, the appellant are not entitle for the refund for the relevant period.
Refund claim - no co-relation between export of goods and input service - Held that:- prima facie, it appears that co-relation between input service and export goods is clearly established therefore on this ground refund could not have been rejected. However it appears that both the lower authorities have not carefully examined the documents.
Refund claim - Technical Testing and Analysis Services - Held that:- the description of the goods and quantity are matching with the service providers invoices. The contract between the appellant and foreign buyer clearly indicates that testing to be carried out through SGS is on record therefore refund was wrongly rejected on these services.
Refund claim - Port Services - Held that:- the Circular dated 12/3/2009 and the judgment in the case of Commissioner Vs. Adani Enterprises Ltd [2014 (11) TMI 973 - GUJARAT HIGH COURT] and SRF Ltd Vs. Comm of C. Excise Jaipur-I [2015 (9) TMI 1281 - CESTAT NEW DELHI] support the claim of the appellant therefore it needs to be re-considered by the Adjudicating authority.
Refund claim - C&F Services - Held that:- container number/shipping bill number and export invoice number are appearing on the bills of service provider, this is sufficient to establish the nexus between input service and the export goods.
Refund claim - Foreign Commission Service - Held that:- refund should not have been rejected only because it is pertaining to the period prior to period of export of service. There is no dispute that foreign commission exclusively related to the export of goods. It is also not in dispute that in respect of same amount of service tax appellant have not claimed refund earlier, therefore the appellant is prima facie entitle for the refund of service tax.
Refund claim - Insurance of Storage of goods - Held that:- appellant's submission is that the storage of goods is exclusively for export of goods as they do not have domestic clearance therefore refund on insurance services is prima facie admissible.
Refund claim - Storage of Warehousing - the submission of the appellant is that even though the storage expenses is beyond the period of export but the warehouse was taken on rent for the purpose of export only. It is pertinent that this warehouse was taken at Krishnapattam Port only therefore by any stretch of imagination it cannot be said that warehouse was taken for any purpose other than export therefore I am of the view that Storage and warehouse services is admissible.
Refund claim - Transportation Services - LRs were not submitted - Held that:- the appellant in their submission shown that RSs are available and they have submitted summary of GTA service tax paid thereon therefore found correct. - Appeal disposed of by way of remand
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2016 (5) TMI 906
Availment of Cenvat credit - Telephone/mobile phone, courier services and construction and repair services (pertaining to staff quarters) - period involved is April 2011 to December 2012 - Appellant contended that all the services availed by them for olr inside the factory premises, threfore, comes under the definition of input service under Rule 2(l) of the Cenvat Credit Rules 2004 - Held that:- with regard to the credit availed in respect of Telephone/mobile phone and courier services, the judgement in the case of Servall Engineering Works Pvt Ltd vs. CCE [2016 (5) TMI 889 - CESTAT CHENNAI] cited supra is squarely applicable to the appellant's case, wherein it was held that the services related to cell phone , courier agency, it is quite possible as to the use of those services for the purpose of manufacturing and commercial activity of the appellant and therefore, Cenvat credit claimed in respect of service tax paid thereon was allowed.Therefore, by following the same, the credit availed on the Telephone/mobile phone and courier services are allowed.
With respect to the repair and maintenance service pertaining to the appellants staff quarters, it is found that the services are in the nature of welfare activity and from 01.04.2011 onwards the credit availed on such welfare activities are not eligible for the credit under Rule 2(l) of the CCR 2004. Since the credit is held to be eligible on Telephone/mobile phone and courier services, penalty is set aside and with regard to the repair and maintenance service in view of the fact that the issue involved is interpretative in nature and the appellants were under the bonafide belief, penalty is set aside. - Appeal disposed of
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2016 (5) TMI 903
Recovery of Service tax credit - Business Support Services - availed credit in respect of services received upto the Port of clearance and beyond that as well - Appellant argued that Ministry has clarified the issue vide its Circular No. 999/6/2015-CX dated 28.2.2015 - Held that:- so far as the services received up to the Port clearance, which is the place of removal for the purpose of manufacturer-exporter as per CBE&C Circular, the credit of Service Tax cannot be denied. However, in respect of services availed at the destination, which is not only beyond the place of removal but also outside India, the same is not admissible. Therefore, the demand for recovery of credit in respect of Terminal Handling Charges and Documentation charges is dropped. Rest of the demand in respect of Destination Terminal Handling Charges, Destination Documentation Charges & Destination Haulage and Shutout charges is confirmed. The penalty is also revised accordingly to the amount equal to the demand confirmed.
Invokation of extended period of limitation - Demand - Held that:- in respect of services availed beyond the territory of India and obviously outside the place of removal, there can be no doubt regarding its inadmissibility. Availment of such credit is obviously without authority of law and mala fide. In such circumstances, extended period for the purpose of demand is correctly invoked. - Decided partly in favour of appellant
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2016 (5) TMI 902
Whether the unamended provision of Section 78 according to which 100% penalty or amended provision of Section 78 according to which 50% penalty is applicable in the case where transactions are recorded in the books of the assessee, when the offence was taken place during the period of unamended Section 78.
Held that:- neither there was any intention to save the tougher provisions of Section 78 of the Act after 8/4/2011, nor Section 38A of the CEA is legally capable of saving the provisions of erstwhile Section 78 of the Act, as Section 78 is not piece of the delegated legislation. Further, the erstwhile Section 78 of the Act does not exist after 8/4/2011 in view of its substitution by new Section 78 of the Act. In the present case, the Principle of Beneficial Construction also does not allow imposition of higher penalty under the provisions of erstwhile Section 78 of the Act. Thus, the imposition of penalty equal to 50% of the Service Tax amount not paid, is found legal and proper.
It is found that it was held that there is no saving clause in Section 38A of the Central Excise Act, for saving erstwhile Section 78 of the Finance Act, nor even anything provided in the amended Section 78 regarding the non applicability of the amended provisions in the case pertaining to the period prior to amendment. In such situation amended Section 78 shall clearly apply at the time of Adjudication of the show cause notice. Therefore, no infirmity found in the impugned order hence the same is upheld.
As regard assessee's appeal for waiver of 50% penalty imposed under Section 78. It is found that admittedly the assessee have collected the service tax and not deposited to the Government exchequer. They have also not filed return in respect of the transaction for which service tax was collected and not deposited. In this fact, it is a clear case of suppression of fact with intent to evade payment of service tax, therefore no reasonable cause has been shown by the assessee in order to invoke the Section 80. The penalty was rightly imposed under Section 78 by the lower authority which is upheld. - Decided against the revenue
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2016 (5) TMI 901
Eligibility of refund claim - Rule 5 of Cenvat Credit Rules, 2004 - period April 2012 to June 2012 - time barred - Refund claim rejected by interpreting the amended provision as per Notification No. 18/2012-CE(NT) dated 17.03.2012, as though the FIRC received in the month of April 2012, the export has to be considered in the month of March 2012, hence there is no export during the quarter from April 2012 to June 2012.
Held that:- it was not open for the Commissioner (Appeals) to go into the issues, which is not arising out of the adjudication order. Since, refund was rejected only on time bar and the appellant filed appeal challenging the same, the Commissioner (Appeals) was suppose to decide the appeal of the appellant only on the issue of time bar. The Commissioner (Appeals) has held that the refund is not time bar. As regard, the refund of ₹ 2,093/- the appellant have produced the corrected invoice wherein the correct address of the appellant is appearing. Therefore, it is found that refund of the appellant being filed within 1 year from the quarter ending is within time limit, hence they are entitled for the refund. - Decided in favour of appellant
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2016 (5) TMI 900
Waiver of penalty imposed under Section 78 of the Finance Act, 1994 and late fee - Section 80 ibid - Trading of goods i.e. sale of empty cartons - Availed Cenvat credit on input services used in or in relation to provision of said services as well as in trading of goods - No separate accounts for receipt, consumption and inventory of input and input services used for providing taxable and non-taxable services as envisaged in Rule 6(2) of the CCR, 2004 were made.
Held that:- the reversal of credit was sought by the Revenue on the ground that the appellant is engaged in providing taxable service as well as non taxable activity i.e. Trading Activity. It is found that prior to 31/3/2011 there was no clarity whether the Cenvat credit in respect of services used for trading activity is required to be reversed or otherwise. Trading activity is included in the exempted services w.e.f. 1/4/2011 since then appellant was reversing the credit attributed to the Trading Activity. However for the period before 31/3/2011 appellant paid entire amount alongwith interest. In view of lack of clarity on the inclusion of Trading Activity under exempted service w.e.f. 1/4/2011, the appellant has shown a reasonable cause for non reversal of the Cenvat credit attributed to the trading activity. Therefore the penalty imposed under Section 78 by invoking Section 80 of the Finance Act, 1994 is waived of. - Decided in favour of appellant
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2016 (5) TMI 899
Waiver of penalty imposed under Section 78 of the Finance Act, 1994 and late fee - Section 80 ibid - Commercial Construction service - Delayed payment of Service tax - Held that:- the appellant is not a regular defaulter on payment of service tax. The liability arose only due to crossing the exemption limit of ₹ 10lakhs in the year 2011-12 and prior to that the appellant was working under exemption being the turnover remained below ₹ 10 lakhs. Therefore, no mala fide intention found on the part of the appellant. Moreover, the appellant, immediately after pointing out by the department regarding non-payment of service tax, discharged the service tax along with interest before issuance of show cause notice. Therefore, the appellant is clearly entitled for the immunity provided under Section 73(3) of the Finance Act, 1994. The appellant has also made out a case for waiver of penalty in terms of Section 80 of the Finance Act, 1994, therefore the penalty imposed under Section 78 of the Finance Act, 1994 is waived of. The order of the Learned Commissioner on the issue of late fee is maintained. - Decided partly in favour of appellant
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2016 (5) TMI 889
Allowability of service tax credit - Input credit relates to cell phone service availed, courier service as well as service of travel agent availed and telephone operator services - Held that:- so far as services related to cell phone, courier agency as well as telephone operator services are concerned, it is quite possible as to the use of those services for the purpose of manufacturing and commercial activity of the appellant. Therefore, CENVAT credit claimed in respect of service tax paid thereon are allowed.
So far as travel agency service is concerned, appellant has not at all the explained the reason as to where such service was utilized and for what purpose and whether in relation to manufacture or not. Therefore, on this limited count, the matter is remitted to the adjudicating authority to satisfy him with the evidence as to the use of such service in taxable service activity or manufacturing activity. - Appeals disposed of
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2016 (5) TMI 846
Legal services - levy of service tax - Delhi court grant stays the operation of amendments with the following directions:-
It is directed that till the next date the operation of the execution of para 1(a) (i) (b) of Notification No.9/2016-ST, para 1(a) (iii) and (b) (iii) of Notification No.18/2016-ST and para 2 (1) (a) of Notification No.19/2016-ST be and is hereby stayed and the Respondents are directed to continue the reverse charge mechanism for payment of service tax for Senior Advocates under Notification No.30/2012-ST.
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2016 (5) TMI 845
Waiver of penalty imposed under Section 78 of the Finance Act, 1994 and late fee - Section 80 ibid - Erection, commission and installation services providing exclusively to state Government company - Delay in filing of ST-3 returns under Section 70 of the Finance Act, 1994 read with Rule 7C of Service Tax Rules - Held that:- the appellant have entertained bonafide belief in non payment of service tax for the reason that the show cause notice demanded the service tax for an amount of ₹ 2.80 crore for the period April, 2008 to March, 2013 whereas in the impugned order the demand was reduced to ₹ 26.36 lacs which is for the period July, 2012 to March, 2013, this shows that there was serious confusion among the assessee as well as department about the levy of service tax on the services provided to State Government Electricity distribution companies.
However when the issue was made clear the entire service tax demand confirmed has been paid before adjudication alongwith interest. I found that appellant have shown reasonable cause for non payment of service tax on due date. Accordingly they have made out a case for waiver of penalty in terms of Section 80 of the Finance Act,1994. Therefore the penalty imposed under section 78 invoking Section 80 of the Finance Act is waived of.
As regard the late fee, it is found that admittedly the service tax was confirmed only for the period July, 2012 to March, 2013 therefore no late fee can be charged for delay of filing/non filing of ST3 returns for the period prior to 1/7/2012. However, the service tax liability confirmed and admittedly paid by the appellant for the period July, 2012 to March, 2013, the appellant was duty bound to file ST3 returns for this period on due date therefore the appellant is liable for late fee for non filing/delayed filing of ST3 returns for the period July, 2012 to March, 2013 in terms of Section 70 read with Rule 7C of Service Tax Rules, 1994. - Decided partly in favour of appellant
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2016 (5) TMI 844
Business Auxiliary Service - Arranging loans to customers from banks and thus promoting/marketing services provided by banks i.e Direct Selling Agent of the bank - Demand of Service tax along with interest and penalties - Held that:- appellant's argument that they have provided only space to the bank and therefore, their service is classifiable under ‘Business Support Service’ is not supported or backed by any evidence in the form of an agreement with the bank. Reliance on the judgment of Chambal Motors (P) Ltd. v. Commissioner of Central Excise, Jaipur-I [2007 (10) TMI 552 - CESTAT NEW DELHI] and Auto World Vs. Comm. of C.Ex., Allahabad [2008 (5) TMI 120 - CESTAT NEW DELHI(CESTAT)] does not favour the appellant. In the former case, it was held that Service Tax is payable on the commission received from the banks and, in the latter judgment it was held that the service rendered by the applicant falls under Business Auxiliary Service. Therefore, Service Tax is payable by the appellant. The plea that the demand is time-barred is not acceptable because there was suppression of facts regarding receipt of commission from the bank and, therefore, extended period of time is invocable.
Benefit of exemption - Notification No. 6/2005 - Held that:- it is found that the Commissioner came to the conclusion that they are using a brand name which disentitles them from the benefit of the notification. It is also noted that there is no evidence on record to indicate that the total value of service provided by them apart from the value of services to the bank did not exceed the exemption limit. - Decided against the appellant
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2016 (5) TMI 843
Denial of Cenvat credit - availed Marine Insurance Policy Service - Service tax paid on insurance of the goods cleared from the factory gate till that reaches abroad - Held that:- it does not appeal to common sense as to why insurance is not integral to export to protect the property for the reason that one would not prefer to cause prejudice to him. Taking up marine insurance policy not being in dispute as well as export not in dispute, followed by reversal of the credit under protest. Therefore, the order of the Commissioner (Appeals) is set aside as it does not appear to be proper and reasonable to survive. - Decided in favour of appellant
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