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Service Tax - Case Laws
Showing 41 to 60 of 107 Records
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2016 (5) TMI 842
Period of limitation - Appeal filed belatedly - Appellant contended that they have not received the order-in-original on time - Held that:- the stand of the first authority to hold that the order-in-original was served on the appellant on 25-8-2009, is incorrect, especially when the postal authorities has returned the envelope with remarks of (LEFT) and no alternative mode of service was resorted to deliver the order-in-original. Therefore, there was no delay in filing the appeal before the first appellate authority. Accordingly, the impugned order is set aside and matter remanded back to the first appellate authority to restore the appeal to its original number and to reconsider issue afresh after following principles of natural justice. - Appeal allowed by way of remand
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2016 (5) TMI 786
Liability of Service tax - Nature of Amount paid to director - Salary of Management Consultancy Service - from 18-4-2006 till 31-10-2006 - Reverse Charge Mechanism - amount paid to Mr. Alan Van Niekerk (director) was running a proprietor ship concern also - Held that:- if an amount paid by the appellant to Shri Alan Van Niekerk is considered as a salary by the Income Tax Department, a branch of Ministry of Finance, Department of Revenue, it cannot be held by the Service Tax Department, another branch of Ministry of Finance, Department of Revenue, as amount paid for consultancy charges and taxable under Finance Act. The same department of Government of India cannot take different stand on the amount paid to the very same person and treat it differently. Therefore, the amount which is paid to Mr. Alan Van Niekerk, has to be treated as salary to the director and the salary is not to be considered as to fall under the category of “Management Consultancy Services” and liable for Service Tax. Impugned order set aside as unsustainable. - Decided in favour of appellant with consequential relief
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2016 (5) TMI 785
Demand of interest - Appellant contended that no interest is recoverable in such a situation where it did not receive the amount from SAIL as SAIL directly made the payments to the sub-contractors and the interest is chargeable with reference to the date of receipt of the payments.
Held that:- SAIL made some of the payments directly to the sub contractor as per the High Court’s order but such payments were made obviously on behalf of the appellant. It was for this reason that the sub-contractors did not ask the appellant to make payments for services rendered (as per sub-contracts between them and the appellant) for which they directly got payments from SAIL and the appellant also did not ask SAIL to pay it for the services rendered as per its contracts with SAIL for which SAIL directly paid to the sub-contractors. Thus it was the appellant liability towards the sub contractors which was being discharged by SAIL by making direct payments to sub-contractors. So, the appellant was deemed to have received those payments and therefore was liable to pay interest in case service tax relating to such payments was paid later than the due date. - Decided against the appellant
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2016 (5) TMI 784
Denial of Cenvat credit - Service tax paid availing services of agri-horticulture consultancy - Appellant submitted that the said services were input service for which the service tax paid on that service - Held that:- copy of the letter dated 1-9-2015 of the Tamil Nadu Pollution Control Board submitted by the appellant shows that it was directed to develop adequate green belt inside the premises for controlling pollution. The reasoning given in that order is that the emission/noise pollution shall be controlled through this process of green belt development. This ground calls for grant of Cenvat credit considering that the appellant is engaged in the manufacture of the goods mentioned in the Pollution Control Board order requiring emission/noise pollution control. - Decided in favour of appellant
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2016 (5) TMI 783
Defect memo - Asked to file separate appeal in respect of each Bill of Entry and pay Court fees for each assessment - Held that:- as per Rule 6A of CESTAT (Procedure) Rules, 1982 it has been clarified [in the Explanation (1)] that in a case where the impugned order-in-appeal has been passed in respect of more than one orders-in-original, the Memoranda of Appeal shall be equal to the Orders-in-original to which the case relates. In the instant case, each Bill of Entry has to be deemed to be an assessment order i.e. order-in-original in respect of which the impugned orders in appeal were passed and therefore, the appellant has to file appeal in respect of each Bill of Entry.
As regards the payment of registration fee it is found that CESTAT in the case of Glyph International Ltd. v. C.C.E. & S. Tax [2013 (8) TMI 17 - CESTAT NEW DELHI] after discussing the issue has clearly held that Section 86(6) of Finance Act, 1994 restricts charging of fees on appeals involving demand of Service Tax, interest or levy of penalty only. Provisions of sub-section (6) of Section 129A of the Customs Act are pari materia Section 86(6) of the Finance Act, 1994. As in the present case there is no involvement of any demand of Custom duty, interest or levy of penalty, therefore, no registration (Court) fee is payable by the appellant. - Defect memo and miscellaneous application disposed of
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2016 (5) TMI 782
Whether engineering consultancy service, commercial or industrial construction service, erection, maintenance and installation service or banking service shall be considered as input service or not - Held that:- it is strange that how without bringing out an edifice, Revenue shall realize its dues towards rental service. Therefore, Commissioner (Appeals) has not committed any error to grant Cenvat credit to the respondent on those input services which are not disintegrated from providing output service - Decided against the revenue
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2016 (5) TMI 751
Refund - Transfer of burden to discharge of service tax liability to another person - bondafide belief - Sale of space or time for advertisement service to several advertising agencies - High Court held that in terms of the statutory provisions it is the appellant which is to discharge the liability towards the Revenue on account of service tax. Undoubtedly, the service tax burden can be transferred by contractual arrangement to the other party. But, on account of such contractual arrangement, the assessee cannot ask the Revenue to recover the tax dues from a third party or wait for discharge of the liability by the assessee till it has recovered the amount from its contractors reported in [2015 (4) TMI 705 - DELHI HIGH COURT] - Apex Court dismissed the special leave petition filed by the petitioner
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2016 (5) TMI 750
Nature of activity of Payment Gateway services provided to client in USA - Whether the place of provision of payment processing service by the applicant, is outside India in terms of Rule 3 of Place of Provision of Services Rules, 2012 - Held that:- applicant is providing this service to WWD US on his own account for a fee equal to the operating costs incurred by the applicant plus mark-up of 13% on such costs. Therefore it cannot be inferred that the applicant would be providing payment processing service to the Indian Customer, for the service rendered by WWD US to them. If that was the case, applicant would not receive any fees from WWD US in respect of payments by the Indian Customer remitted directly through International Credit Card to their service provider i.e., WWD US. But that is not the case.
Further, the definition of “intermediary” as envisaged under Rule 2 (f) of POPS does not include a person who provides the main service on his own account. In the present case, applicant is providing main service i.e. “business support services” to WWD US and on his own account. Therefore, applicant is not an “intermediary” and the service provided by him is not intermediary service. Thus, the place of provision of service would be location of recipient of service i.e. WWD US under Rule 3 of POPS. Therefore, the place of provision of payment processing service by the applicant, is outside India in terms of Rule 3 of Place of Provision of Services Rules, 2012.
Whether the services to be provided by the Applicant to WWD US that fall to be classified under Rule 3 of the Place of Provision of Services Rules, 2012 qualify as export of taxable services in terms of Rule 6A of the Service Tax Rules, 1994 (inserted vide Notification No. 36/2012-S.T. dated 20.6.2012) and therefore remain non-taxable for purpose of payment of service tax under the Finance Act - Held that:- the place of provision of service would be outside India. It is observed that in this case, provider of service i.e. the applicant, is located in India, which is the taxable territory; recipient i.e. WWD US is located in USA; the service to be provided by the applicant i.e. business support services, is not specified under Section 66D i.e. Negative List Services; applicant would receive payment for said services in convertible foreign exchange and applicant and WWD US are not merely establishments of a distinct person in accordance with item (b) of Explanation 3 of clause (44) of Section 65B of the Finance Act, 1994. As all the ingredients enlisted under Rule 6A ibid are satisfied, said service will qualify as export of taxable service.
In facts and circumstances of the case, by providing the payment processing services to WWD US, the applicant is not providing any service to the customers of WWD US in India.
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2016 (5) TMI 749
Extended period of limitation - Photography Service - Wilful misstatement and suppression of facts - Appellant admitted that it was engaged in the activity of image editing but did not give any printed photograph to the customers and only loaded the images on a CD which was given to the customers for getting the photos printed elsewhere, therefore there was no photography services rendered.
Held that:- it is not even necessary to quibble much over the scope of the word photography because the appellants clearly were engaged in taking or processing of photographs and were clearly covered under the scope of definition of photography studio or agency and they clearly provided service in relation to photography. Indeed the position is so unambiguous that there was no scope for any possibility of a reasonable person operating in an appropriate environment to entertain any confusion, leave alone belief, that the impugned service was not covered under photography service. It is pertinent to mention that bona fide belief is the belief of a reasonable person operating in an appropriate environment and is not some sort of hallucinatory belief. - Demand confirmed invoking the extended period of limitation - Decided against the assessee.
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2016 (5) TMI 748
Classification - Advertisement services or Business Auxiliary services - all the cricket players are engaged through the appellant in providing advertisement and promotion of the product of M/s. Hero Honda Motors Ltd. The appellant are paid the consideration towards advertisement performed by the celebrities. - Period involved is 1-4-2000 to 30-6-2003 - Appellant submitted that they are not advertising agency and their services were rightly classifiable under Business Auxiliary Services which became taxable only w.e.f. 1-7-2003 therefore on the BAS, since there was no tax liability prior to 1-7-2003 no demand can be raised since the services admittedly covered under BAS and they have been paying service tax under such head w.e.f. 1-7-2003.
Held that:- from the tripartite agreement, it clearly shows that It is also undisputed that the payment consideration towards advertisement performed by the celebrities are received by the appellant, therefore appellant is legally liable for payment of service tax under the category of advertising services during the period involved in the present case. As regard the contention of the appellant that the services are of promotion of sale of goods of M/s. Hero Honda Motors Ltd. and therefore the same is classified as Business Auxiliary Service which became taxable only from 1-7-2003, we do not agree with this contention for the reason that services of celebrities are nothing to do with the promotion of the sale whether sale is promoted or not, the service of celebrities is confined to display of brand and advertise the product of M/s. Hero Honda Motors Ltd., therefore, services are clearly of ‘advertising services’ and not of BAS.
By applying the decision of Madras High Court in the case of of M/s. Adwise Advertising Pvt. Ltd. Vs. Union of India [2001 (3) TMI 1 - HIGH COURT (MADRAS)], locating or selecting a particular media would be a “Service”, by the advertising agency “in relation to the advertisements”.
Appellant, as the service provider, were legally bound to collect and pay service tax, and a clause in the agreement cannot absolve the Appellant of their responsibility for paying the service tax on the taxable advertising services, rendered by them during 1-4-2000 to 30-6-2003.
Imposition of penalty - Section 76 and 78 of that Act - Held that:- by applying the decision of Hon'ble Kerala High Court in the case of Asst. CCE & Ors. Vs. Krishna Poduval & Ors. [2005 (10) TMI 279 - Kerala High Court], despite providing taxable advertising services, during the period 1-4-2000 to 30-6-2003, they had suppressed the fact that the amount realized by them was for the said taxable services provided by them during the relevant period. Therefore, penalty is imposable as a person who is guilty of suppression deserve no sympathy.
Invocation of extended period of demand - Non-disclosure of advertising services to the department and despite possessing the registration also not disclosed to the department, the provisions of services and collection of amount thereagainst - Held that:- it is a clear case of suppression of facts on the part of the appellant. Moreover in some of the agreements, the clause related to payment terms contains the liability of payment of Service Tax. Therefore the larger period of demand was rightly invoked. Since there is suppression of facts, the appellant was legally liable for penalties under Sections 76 and 78. The impugned order does not require any interference, hence the same is maintained. - Decided against the appellant
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2016 (5) TMI 747
Waiver of pre-deposit in full and stay of further proceedings for realisation of liability assessed - Business Auxiliary Service - Appellant acting as an intermediary to facilitate citizens to obtain various licences, permissions and registrations which are statutorily regulated and collected a stipulated fee in return from individuals and organisations who apply for such licences/permission or registrations.
Held that:- the services provided by the appellant to public for facilitating receipt by them of licenses/permissions/registrations issued by the State Govt. do not fall within the ambit of any integer of Business Auxiliary Service as defined in Section 65(19), including within the ambit of service provided as a commission agent, since the public from whom the appellant had received consideration cannot be said to be providing any service to the State while receiving the statutorily mandated permissions/licences/registrations. Therefore, waiver of pre-deposit in full is granted and all the further proceedings for recovery of the assessed liability under the impugned order are stayed. - Waiver granted in full
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2016 (5) TMI 684
Refund claim - Export of Sevices - Held that:- Cenvat credit would be available of input services even if out-put services are non-taxable. - the appeal is covered by the decision of this Court in the case of PR. Commissioner of Service Tax Versus Mportal (India) Wireless Solutions Pvt. Ltd. [2016 (4) TMI 409 - KARNATAKA HIGH COURT]. Therefore in view of this, the present appeal is disposed of. - Appeal disposed of
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2016 (5) TMI 683
Refund claim - 100% EOU unit - Event management service, Real estate agent service, Tour operator service and Travel agents service - Refund claim was allowed for the services where nexus was found and not allowed +for services where nexus was not found by the appellate authority - Held that:- the Tribunal did not examine the question of nexus vis-à-vis the particular service for which the refund claim was disallowed, but gave a summary finding for the refund available on all the above input services but has not categorically mentioned nor the question of nexus is examined by the Tribunal. It is true that the Tribunal found that liberal interpretation was to be made with regard to input services when one has to examine the nexus with the output services. But in our view, such could not be said to be sufficient to conclusively allow the revision claimed, unless the nature of service is examined and the nexus is found with the output services. It was required for the Tribunal to examine each of the services namely, event management service, real estate agent service, tour operator service and travel agents service for which the claim of refund was made and the Tribunal was to find out as to whether it has nexus with the output services, which was being rendered by the respondent or not.
As there is no discussion whatsoever on the said aspects, we find that the order of the Tribunal can be said to be without consideration of the relevant aspects germane to the exercise of the power and hence, the order cannot be sustained in the eye of law. Therefore, the impugned order passed by the Tribunal is set aside with a direction that the appeal shall stand restored to the file of the Tribunal and the Tribunal shall examine the appeal afresh in light of the observations made by this court in the present judgment and after hearing both sides, the Tribunal shall pa ss an appropriate order as early as possible. - Decided partly in favour of revenue
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2016 (5) TMI 682
Refund claim - Unutilized accumulated Cenvat credit - Manpower Recruitment Agency Services - Export of services as providing to foreign client - Department contended that input services have no nexus with the output services - Held that:- all the services except ‘Rent-a-Cab Service’ are essential services for providing the service of Manpower Recruitment Agency. it is also found that any service whether it is used for providing output services or otherwise, cannot be decided in isolation but it is necessary to see what is the output service and accordingly it can be decided whether the service is input service for providing a particular output service. In the present case, output service is Manpower Recruitment Services. As per the nature of aforesaid input services, they are essential services for providing ‘Manpower Recruitment Agency Services’. Therefore, no reason found to interfere in the impugned order which is just and proper and in conformation to definition of input services.
Refund claim - Rent-a-cab Service - Held that:- this service was excluded from the definition of input services in terms of Clause (B) of Rule 2(1) of CCR, 2004, therefore even though the same was used for the conveyance of staff but due to specific exclusion, the same does not remain as input service and therefore refund is not admissible in respect of Transport Service (Rent-a-Cab Services). - Decided partly in favour of appellant
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2016 (5) TMI 681
Waiver of pre-deposit - Tribunal passed order by setting aside only two contentions of appellant - Service tax demanded under the head Construction service was in contravention of circular dated 24th August, 2010 issued by CBEC clarifying that the activity had to be treated as a works contract and a distinction had to be drawn between the value of goods supplied as part of the works contract and the value of the services rendered for the purposes of Service Tax - Held that:- the Court notices that in a similar appeal before this Court by a sister concern of the Appellant reported in [2015 (10) TMI 2484 - DELHI HIGH COURT] noted a similar contention of the Appellant 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. In view of the fact that the above contentions have not been considered by the CESTAT when it passed the impugned order, the Court sets aside the impugned order and revives the stay application filed by the Appellant before the CESTAT for a fresh decision in accordance with law. - Appeal disposed of
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2016 (5) TMI 680
Rectification of mistake - Section 74 of the Finance Act, 1994 - Demand of Service tax in terms of Section 73 of the Act on residential complex service - Petitioner contended that the sum of ₹ 41,14,69,442/-, referred to by them before the assessing authority, was a typographical mistake and the correct receipts, for the project of construction of 928 houses for the Financial Year 2008-09, was only ₹ 4,14,69,442/-.
Held that:- in the exercise of its Certiorari jurisdiction, this Court would not re-appreciate findings of fact recorded by the Commissioner in his order. It is only if the order were to suffer from an error apparent on the face of the record, would there be any justification to interfere with the impugned order. We are satisfied that the impugned order does not suffer from any such infirmity. As the scope of Section 74(1) of the Act, for rectification of a mistake, is limited, and as the statements made by the petitioner, at different points of time, are inconsistent, we see no reason to interfere with the well-reasoned order passed by the Commissioner. Rejection of the application, for waiver of pre-deposit, by the CESTAT would only enable the respondent to collect the amount demanded from the petitioner towards service tax, interest and penalty. It would not result in the dismissal of the appeal itself. As the CESTAT has the power to examine the material on record, reappreciate the evidence, and arrive at a finding different from that of the adjudicating authority, we request the CESTAT to hear and decide the appeal with utmost expedition. - Decided against the petitioner
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2016 (5) TMI 679
Review application - Demand of service tax - rent which had been received in the matter of allotment of plots by the assessee to use for construction for business/commercial purposes during the terms of the lease - an act of sovereign/public duties/functions or not - High Court upheld the Tribunal's order that the lease of open land for use as commercial/business purpose, as an taxable event, but what amount is to be taken into consideration for computation of service tax has been confined to the periodical rent only reported in [2015 (4) TMI 661 - ALLAHABAD HIGH COURT] - High Court rejected the review application for no case being made out.
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2016 (5) TMI 678
Refund of Cenvat credit - Rule 5 of CENVAT Credit Rules - Appellant not registered with the Service tax department during the relevant period - Held that:- the issue relating to registration is no more res integra and settled by the Hon'ble Karnataka High Court decision in the case of Mportal India Wireless Solutions Pvt Ltd Vs CST Bangalore [2011 (9) TMI 450 - KARNATAKA HIGH COURT], therefore, no merits found in the objection raised by the Revenue.
Refund of Cenvat credit - Rule 5 of CENVAT Credit Rules - Certain services do not have nexus with the output services - Appellant contended that almost 24 services were involved and the Commissioner (Appeals) has discussed only about 11 services and has not given any finding on the balance services. Also there are various decisions of the Tribunal wherein disputed services have been held to be CENVATTABLE input services having nexus with the output services.
Held that:- the issue of input-output nexus can only be examined and verified at the level of the adjudicating authority. Inasmuch as the matter already stands remanded to the original adjudicating authority, we deem it fit to remand the entire proceedings to him for fresh examination in the light of declaration of law by the Tribunal in various decisions, which the appellant would place before the original adjudicating authority. However we make it clear that as we have already held that the objection of the assessee not being registered with the Revenue is not available to the department, the same would not be considered as a bar for examining the assessee's refund claim. - Appeals disposed of
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2016 (5) TMI 677
Period of limitation - Adjudication order was dispatched to the appellant on 29-12-2010 whereas the appeal has been filed by the appellant before the ld. Commissioner (Appeals) on 8-3-2013 - time barred - Held that:- the appellant has filed an affidavit to the fact that they have not received the adjudication order and the affidavit has not contraverted by the ld. Commissioner (Appeals) with cogent evidence. In that circumstances, the affidavit filed by the appellant is having evidential value. Therefore, it is held that the appellant has not received the order in 2010 and received the order only on 9-2-2013. Thereafter field appeal on 8-3-2013 which is well within time. In such circumstances, the appellant has filed an appeal before the ld. Commissioner (Appeals) within time. Therefore, the impugned order is set aside. - Appeal disposed of by way of remand
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2016 (5) TMI 662
Eligibility for refund of Service tax - Notification No. 41/2007 - GTA service utilised in respect of export of goods - Appellant contended that it claimed refund after 19-2-2008 when GTA service was included for the purpose refund in Notification No. 41/2007 by amending Notification No. 3/2008-S.T., dated 19-2-2008 and therefore the refund should have been granted - Held that:- it is seen that Notification No. 41/2007-S.T. is an exemption notification and the exemption is operationalised by way of granting refund. Thus, the appellant would be eligible for refund of Service Tax paid on GTA service only if the said service was exempt from Service Tax under Notification No. 41/2007-S.T. at the time when the said service was rendered.
It is seen that GTA service was rendered during October, 2007 to December, 2007. During the said period, the said service was not eligible for exemption under that notification as it was added in the said notification for the purpose of exemption w.e.f. 19-2-2008 vide amending Notification No. 3/2008-S.T. It is not anybody’s case that Notification No. 3/2008-S.T., dated 19-2-2008 has retrospective applicability. Thus, there is no doubt that on the date of rendition of GTA service, the same was not eligible for exemption under Notification No. 41/2007-S.T. Therefore, the question of refund of Service Tax paid on the said service in terms of Notification No. 41/2007-S.T. does not arise. - Decided against the appellant
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