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Service Tax - Case Laws
Showing 61 to 80 of 107 Records
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2016 (5) TMI 661
Denial of Cenvat credit - CHA Services and Outdoor Catering Services - No evidence to show that cost of said services was borne by the appellant - Appellant argued that when the place of removal for the purpose of export is a Port of Export in terms of Circular No. 999/6/2015-CX dated 28.2.2015 then the credit of CHA services needs to be allowed. Also their factory is covered by the Section 92 of the Factories Act, 1948 and hence it is mandatory for them to provide canteen services.
Held that:- in view of the circular dated, 28.2.2015, the issue stand settled in favour of the appellant in so far as credit of CHA services is concerned. In view of the decision of Larger Bench of this Tribunal in the case of CCE, Mumbai-V Vs GTC Industries Ltd. [2008 (9) TMI 56 - CESTAT MUMBAI], the credit of Outdoor Catering Services in the proportion in which the expenditure is borne by the appellant would be admissible to them. However, proportion of Service Tax in respect of the cost of such catering services borne by the employees of the appellant would not be admissible. - Decided partly in favour of appellant
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2016 (5) TMI 660
Cenvat credit - Whether the benefit of admissibility of catering service as eligible input services can only be given to the establishments employing more than 250 employees - Held that:- Tribunal after relying on the decision of Bombay High Court in the case of CCE, Nagpur Vs Ultratech Cement Limited [2010 (10) TMI 13 - BOMBAY HIGH COURT] and Gujarat High Court in the case of Commr. of C.Ex., Ahmedabad-I Vs Ferromatik and Milacron India Limited [2010 (4) TMI 649 - GUJARAT HIGH COURT], has held that there is no law providing for catering service to qualify as input service only if number of employees exceed 250. Therefore, there is no reason to interfere with the view taken by the Tribunal. - Decided against the revenue
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2016 (5) TMI 612
Recall of final order - Final order passed without hearing their side - Held that:- the final order though passed after examining the merits of the case, has been passed without representative from the appellants side. Considering the submission made by the appellant and also the principle laid down by Hon’ble Supreme Court in the case of J.K. Synthetics Ltd. Vs. CCE [1996 (8) TMI 110 - SUPREME COURT OF INDIA], it is found fit and justifiable to recall the final order and to restore the appeal to its original number for due disposal afresh. - Decided in favour of appellant
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2016 (5) TMI 611
Service tax liability - Transport of goods by road received by the appellant for the period in question - Refusal of 75% abatement under the notification dated 1st July, 2006 as claimed - Appellant contended that the said notification even though was withdrawn on 1st March, 2008 yet the benefit of 75% abatement was available for the period in question which has been disallowed on the ground that the transporters did not give any declaration or certificate for providing such services and in the absence of such evidence the abatement could not have been claimed.
Held that:- the applicability of abatement of 75% under the notification dated 1st March, 2006 which is in effect an exemption ought to have been considered in accordance with the instructions issued by the department itself on 27th July, 2005. What had to be seen by the Tribunal was substantial compliance, and if the statute had been followed sufficiently, then in that event the benefit claimed should not have been denied. In other words, it should not be an automatic or mechanical levy and consequently no penalty could have been imposed.
Rejection of adjournment - Non-availibility of counsel - Tribunal proceeded without a proper opportunity of hearing - Held that:- it is not the case of the department that the appellant had indulged into any excessive adjournment or was deliberately trying to delay the hearing of the appeal. This was necessary to be observed as the Tribunal is the last court of fact and a finding of fact has to be recorded on consideration of relevant material and not on irrelevant considerations or else it can be impeached as being perverse. Therefore, the appeal deserves to be allowed on account of the impugned judgment having been rendered in violation of principles of natural justice adversely affecting the appellant which is clearly raises a substantial question of law. - Appeal allowed by way of remand
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2016 (5) TMI 610
Period of limitation - Refund of Service tax - Section 11B of the Central Excise Act, 1944 with Section 83 of the Finance Act, 1994 - Held that:- CESTAT ought to have first satisfied itself that the services rendered by the appellant was, on facts, amenable to service tax and different from the other three appeals which were heard together - in view of the decision of Tribunal in the case of Alar Infrastructures Pvt. Ltd. Versus Commissioner of C.Ex., Delhi-I [2015 (9) TMI 783 - CESTAT NEW DELHI], in so far it has dismissed the appeal of the present appellant is set aside and the appeal of appellant is restored to the file of the CESTAT for a decision afresh in the above terms in accordance with law. - appeal restored
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2016 (5) TMI 568
Maintainability - Territorial jurisdiction - Petitioner contended that since the demand for service tax is in relation to transactions in Delhi as well, a part of the cause of action arises within the territorial jurisdiction of this Court - Held that:- the Court notes that prayer (a) of the petition is for a declaration that the transactions sought to be subject to service tax are not in fact amenable to service tax as they are “deemed sales” in terms of Section 65(105) of the Finance Act, 1994 (upto 30th June, 2012) and Section 65B (44) of the Finance Act, 1994 (with effect from 1st July, 2012). This declaration will cover the Petitioner’s transactions throughout India and would not be limited to any particular jurisdiction. Prayer (b) seeks the quashing of the Order-in-Original passed by Respondent No.3, the Commissioner of Service Tax in Mumbai. An appeal against the said order is maintainable before the CESTAT, Mumbai Bench. However, the fact of the matter is that the four Show Cause Notices (SCNs) which preceded the said order covered transactions relating to the lease of vehicles in Delhi as well. In other words, the transactions covered by the SCNs were not limited to the territory of Mumbai.
Therefore, in the light of law explained by the decisions of the Supreme Court in various cases and the principles crystallized in the judgment of the Five-Judge Bench of this Court in Sterling Agro Industries v. UOI [2012 (6) TMI 76 - DELHI HIGH COURT - LB], the Court is of the view that it would not be justified in declining to exercise jurisdiction on the doctrine of forum conveniens. Consequently, the Court is satisfied that the present petition is maintainable in this Court. - Application disposed of
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2016 (5) TMI 567
Condonation of delay - Whether there was sufficient cause for condonation of delay in filing the appeal - Demand of Service tax alongwith interest and penalty - Authorized Service Station and Business Auxiliary Service - Held that:- the explanation furnished by it cannot be held to be plausible. It cannot be said that there was sufficient cause for condonation of delay. The Tribunal had decided the appeal on 6.12.2013. However, the appeal before this Court was required to be filed on or before 5.3.2014, i.e. within the stipulated period of limitation of three months. But the appellant filed the appeal before this Court on 28.3.2016, after a long and inordinate delay of 638 days. According to the version of the appellant, it was informed by the counsel that the appeal of the revenue was dismissed in 2015 but still the appellant never bothered to obtain certified copy of the order. Nothing had been produced to substantiate the said plea either in the form of an affidavit of the counsel or by producing other material on record.
Further, this version does not appear to be natural and cannot be said to be reasonable and logical as a litigant would always like to keep his record complete in case the lis had been decided either in his favour or against him by obtaining certified copy of the order and other relevant papers from its counsel which had not been done here. The story put forth by the appellant is a camouflage to cover the inordinate and unexplained delay in filing the present appeal. Since no sufficient cause has been shown in the present case, no ground for condonation of delay is made out. Therefore, the application for condonation of delay and the same is hereby dismissed. Consequently, the appeal is also dismissed as barred by time. - Decided against the appellant
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2016 (5) TMI 515
Scope of negative list u/s 66D(1) - educational services - Revenue Sharing agreement - Partnering Agreement to combine their mutual areas of expertise for the setting up and operation of an educational institution - the entire revenue relating to the school will be received in a joint account operated by the applicant and Choice Foundation jointly and revenue share would be drawn from this account by the applicant and Choice Foundation.
Held that:- with regard to pre-school education and education up-to higher secondary school or equivalent, the “partnering person” would come under the Negative List and would not be liable to Service Tax.
Regarding construction service where the entire consideration is received after issuance of completion certificate - Held that:- the construction of complex etc., in this case will not come under the ambit of declared service and not be liable to Service Tax. Renting of Immovable Property.
Regarding renting of premises - Held that:- the applicant, Choice Foundation and “partnering person”, are all 3 separate persons under Section 65 B (37) of the Finance Act, 1994. Therefore, service of providing of renting of immoveable property by applicant to “partnering person” will not be “self service”. The consideration for renting said property would be received as per the “Revenue Share” clause in the said Agreement. Therefore, renting of immoveable property would be liable to Service Tax.
a) Service Tax is applicable on the revenue share relating to the applicant to the extent it is relatable to rendering of taxable service. - b) Service Tax is applicable on the revenue share relating to Choice Foundation to the extent it is relatable to rendering of taxable service. - c) Service Tax is not leviable on the fees collected from the students to the extent it is covered under the Negative List in terms of Section 66D (l) of the Finance Act, 1994. - d ) Service Tax is payable by a person providing taxable service in terms of Section 68(1) of the Finance Act, 1994. Therefore, in this case, Service Tax will not be payable by the students, as they are not providing any service.
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2016 (5) TMI 514
Delay in filing of appeal before the Commissioner(Appeals) - the order-in-original was passed by the Assistant Commissioner of Central Excise and Service Tax, Jamshedpur on 28.8.2015 and was issued on 17.09.2015 and was sent on 18.09.2015. - Held that:- looking to the provision of Section 85 (3A) of the Finance Act, 1994 the period to prefer an appeal is 2 months from the date of receipt of the Order-in-Original and there is a further period of 1 month for which a delay can be condoned. In the facts of the present case the appeal was preferred by this petitioner on 19.11. 2015.
Thus, this petitioner can prefer appeal with a delay condonation application along with the appeal against the Order-in-Original and the same will be decided by the Commissioner (Appeals) on its own merits, looking to the date of receipt of the Order- in-Original.
This aspect of the matter has not been properly appreciated by the Commissioner(Appeals) while rejecting the appeal preferred by this petitioner - Matter restored before the Commissioner (Appeals) to decide the issue.
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2016 (5) TMI 513
Challenge to the recovery notices without challenging the order-in-original - service tax was collected but not paid - Held that:- without challenging the original order dated 28.02.2007, the petitioner cannot challenge the consequential order dated 04.04.2016 and it could be seen that the petitioner did not pay the amount in spite of repeated reminders sent by the respondents. - Writ petition dismissed - Decided against the assessee.
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2016 (5) TMI 456
Advertising agency service on commission basis - promotion or marketing services to the Media Owners or not - Revenue submits that as far as proposed Business Model-1 is concerned, the volume discount received by the applicant for the services provided to the Media Owner is liable to Service Tax. - Two business models - Model (1) Placement of advertisement in traditional media on behalf of the advertiser - Modes (2) Buying and selling of advertisement inventory in non-traditional media, on its own account.
Held that:- In proposed Business Model 1, while the applicant shall be appointed by its clients i.e. the advertiser to provide services, incidental receipt of incentives/volume discounts from Media Owner shall not be considered to be providing a service, as defined under the Finance Act, 1994, to the Media Owner and shall not be liable to Service Tax.
In proposed Business Model 2, while the applicant shall buy and sell the media inventory on its own account to the advertiser, incidental receipt of incentives/volume discounts from Media Owner shall not be considered to be providing a service, as defined under the Finance Act, 1994, to the Media Owner and shall not be liable to Service Tax.
In both the Models, there is no service tax liability.
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2016 (5) TMI 455
Benefit of exemption notification no. 25/2012-ST is available or not - Activity of Testing & Commissioning, Integrated Testing & Commissioning and Trial runs of Trains under contract - Installation and commissioning of EMU and the platform - whether in the nature of erection, commissioning or installation of plant, machinery or equipment pertaining to metro - Whether in nature of original work - Held that:- the General Conditions of Contract/ Conditions of Contract mention that tests on completion shall include Integrated Testing, wherein the contractor (applicant) shall follow satisfactory completion of tests on his equipment, sub-systems or systems to verify and confirm the compatibility and compliant performance of his equipment/subsystem/ system with the equipment/sub-system/system provided by others Therefore, based on said compatibility and compliant performance, trial runs for the metro are undertaken. Therefore, this whole process is nothing but commissioning i.e. bringing Rolling stocks into operation.
Therefore, we agree with the applicant that the services provided i.e. in relation to testing & commissioning, integrated testing and commissioning, trial runs of trains, are by way of commissioning.
Works Contract - original work - Held that:- “original work” inter-alia means erection, commissioning or installation of plant, machinery or equipment or structures, whether fabricated or otherwise. - Rolling stock is at least plant and machinery and same would be commissioned by the applicant. Therefore, the applicant would satisfy this condition also i.e. providing services by way of commissioning of original work.
Applicant is eligible for claiming exemption from payment of Service Tax in terms of Notification No. 25/2012-ST dated 20.06.2012 for the activities in relation to Testing & Commissioning, Integrated Testing & Commissioning and Trial runs of Trains to be undertaken under the contract. - Decided in favor of assessee.
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2016 (5) TMI 452
Seeking release of bank accounts - Unascertained and uncrystallized dues - Petitioner admitted the Service tax liability for the period 2010-11 till 2014-15 - Held that:- the petitioner has to deposit sum of ₹ 5 crores with the respondents on or before 10th June, 2016 and produce proof of the same before the Registrar, of such deposit on that day. Time to make payment shall not be extended and no application will be entertained even during vacation by this Court. To enable petitioner to pay an amount of ₹ 5 crores in terms of our order, three bank accounts of the petitioner shall be released temporarily forthwith. Any default in compliance with the order shall result in the writ petition being dismissed without any further reference to this Court and these accounts can be reattached and refrozen.
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2016 (5) TMI 451
Waiver of pre-deposit - Service tax confirmed under the category of commercial or industrial construction services - Appellant pleaded that its none of its 4 construction projects would be covered under the service tax category - Held that:- we are of the prima facie view that NRDA engaged in commercial activity of land development and sale for profit. They are primarily engaged in commerce and building for such work may be correctly categorized for tax purpose as done in the impugned order. It is recorded that the applicant has not submitted any compelling documentary evidence to substantiate that NRDA is not primarily engaged in commercial activity. As such we find the tax liability on that, prima facie, may stand.
It is also found that tax liability on the office building of NRDA is, prima facie, sustainable and the financial position of the applicant is not in such bad shape in order to consider for total waiver of pre deposit. Therefore it is fit and appropriate to order for a pre deposit of ₹ 7 crore within a period of 8 weeks. - Stay granted partly
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2016 (5) TMI 450
Waiver of pre-deposit - Demand of service tax along with interest and penalty - Franchise services - Consideration received by the applicant from the various accredited registrars of domain names - Applicant prays that they are not covered by the franchise services as they do not permit any other person to represent them in any of their rights..IN domain name does not belong to them and they are only managing the allocation of various domain names with this top level domain.
Held that:- the applicant may not fall under the category of franchiser (Section 65 (48)). The applicant is not holding exclusive rights or ownership of domain name so that he can be made liable for giving representational right for consideration. The domain.IN is the Government of India’s right and that the appellant claims arising in terms of clear agreement. The impugned order does not throw light on how the applicant can be said to have provided representational right when the domian name is not exclusively owned or controlled by the applicant. It is found that the decision of the Tribunal in Directi Internet Solutions Pvt. Ltd. VS. CST Mumbai [2014 (8) TMI 591 - CESTAT MUMBAI] prima facie applies to the present case also. - Waiver granted
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2016 (5) TMI 449
Demand of Service tax - Deposits made by the appellant’s customers, in anticipation of the services to be received by them throughout the year - Appellant submitted that the deposits/advances made by the customers have fully discharged the service tax on the same either in the year of deposit or in the subsequent year, thus not calling for any further service tax. Also the part of the said demand is on the account of interest and to the extent of around ₹ 28 lakhs, the said interest stands confirmed on the ground that in terms of section 67 of the Finance Act any advance received from the customers for the services to be provided are required to be discharged service tax liability at that point of time only.
Held that:- in respect of interest we are of the view that in terms of provision of Section 67 the service tax liability was required to be discharged at the time of the receipt of advances itself. The delayed discharged of such service tax as rightly, at this prima facie stage, accrued as interest liability against the appellant. In as much as, the appellant has not pleaded any financial hardship and we have observed against the assessee on the said legal issue for payment of interest the applicant is directed to deposit an amount of ₹ 60 lakhs towards the said liability within a period of six weeks from today.
Demand of Service tax of ₹ 2.34 crores - Appellant was paying service tax as per the agreement under the category of renting of immovable property w.e.f. 01.06.2007 but the Revenue took the view that prior to 01.06.2007 the said service tax would fall under the category of franchisee services and raised the demand by invoking the longer period of limitation - Held that:- the appellant was paying service tax under the said agreement in respect of the said agreement. The appellant's contention is noted in as much as the entire facts were before the revenue and the payment of service tax under the category of renting of immovable property was being accepted by the Revenue without any objection, no malafide can be attributed to the appellant.
Otherwise also it is found that the appellant is a central Government undertaking in which case it cannot be said at this prima facie stage that they were indulging in evasion of duty by suppressing any facts or by misstatement, with an intention to evade payment of duty. On this ground also prima facie case is found in favour of the appellant and accordingly dispense with the condition of pre deposit of the said amount.
Demand of Service tax - Manpower recruitment or support agency services - Held that:- the said demands can be dealt in detail at the time of final disposal of the appeal. The appellant is directed to deposit an amount of ₹ 60 lakhs within a period of six weeks subject to such pre deposits and balance amount of duty and interest and penalty shall remain waived and its recovery stayed during the pendency of the appeal.
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2016 (5) TMI 378
Waiver of pre-deposit of service tax - Period involved is 16/6/2005 to 31/5/2007 - Site Formation and Clearance, Excavation and Earth Moving and Demolition Services - Imposition of interests and penalties under Section 76, 77 and 78 of the Finance Act - Held that:- admittedly appellant started paying duty under the mining services w.e.f. 01/6/2007. The dispute relates to the same set of activity for the period prior to 01/6/2007. It stand held in number of decisions of the Tribunal that when a specific category of service is brought under the service tax net, w.e.f. a particular date, it has to be held that the same activity was not covered by any other earlier services. Revenue has not objected to the appellant's payment of service tax under mining services. In fact, its stand accepted that after 01/6/2007 the same activity would fall under mining services. In such a scenario, it is not open to the Revenue to hold that the activity was falling under a different category of site formation and clearance, for the period prior to 01/6/2007. As the issue is bonafide interpretation of complex, provisions of law and in the absence of any direct evidence showing any malafide on the part of the assessee, the demand is prima facie barred by limitation. - Waiver and unconditional stay granted
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2016 (5) TMI 377
Waiver of pre-deposit - Non-payment of Service tax under various categories - Demand of Service tax along with interest and penalties - Import of taxable service under the category of event management service - Held that:- services received by the applicant from the overseas entities in connection with organizing annual summit in India will fall under the taxable service of 'event management' and the applicant is liable for such tax on reverse charge basis with effect from 18.4.2006. Therefore, waiver of pre-deposit of the confirmed Service tax dues cannot be made to the full extent under this category.
Import of internet connectivity - Internet telecommunication services - Held that:- the applicants claim that their payment to US company should be considered as for renting of movable property appears, prima facie, not sustainable. The server placed outside are meant for internet connectivity services related cannot be considered as hiring of simple physical space for placing servers.
Management consultancy services - Applicant claimed that they have acted as pure agent - held that:- the claim of applicant was not accepted by the adjudicating original authority. At the prima facie stage itself it is found that the merits of the case could not be categorically analysed without detailed examination of the terms of agreement and also the claim of applicants as being pure agent. The applicants appears to have an arguable case in this category.
Business support services - providing infrastructure support to the corporate companies - Held that:- it is found that prima facie, the applicant failed to make out a case for waiver of pre-deposit of full dues. At this stage, appellant could not explain various categories of sharing expenses and how such sharing of expenses are not relatable to business support services. Certain infrastructure facility are shared and the final tax liability of the applicant on this count has to be seen after examining each type of expense shared by the corporate companies.
As the applicant failed to make out a strong case for full waiver of adjudicated dues and no financial hardship pleaded, the appellant is to be directed to deposit an amount of ₹ 2,00,00,000/- (Rupees Two crores only) within 8 weeks. - Stay application disposed of by not granting full waiver
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2016 (5) TMI 376
Waiver of pre-deposit - Transfer of Cenvat Credit under Rule 10 in case of provider of output services - transfer of all assets on demerger - Cellular telecommunication services - Cenvat Credit availed on various inputs and capital goods used for setting up of towers and prefabricated buildings - Imposition of penalty - Held that:- The question as to when the transferor does not seek the transfer of the accumulated credit, whether the same would lie in the account books of transferor or in that case, the credit is required to be disallowed. The plain reading of the said Rule nowhere suggest that owner or the transferor of the business is legally bound to transfer the credit which cannot remain in existence.
Appellant continues to provide output service on which they were paying service tax and towers and other infrastructure having remained where the same were located earlier and continue to be used by the appellant. In such a scenario, we prima facie agree with the learned advocate that the denial of credit to the appellant is not in accordance with the provisions of Rule 10.
As such, on the point of time bar also, the appellant has good prima facie case. Therefore the condition of pre-deposit is dispensed with and all. - Stay petition allowed
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2016 (5) TMI 375
Liability of service tax - Maintenance & Repair Services "Business Auxiliary Services" - Whether the activity of the appellant in supplying and maintenance with repairs the ATM machine are liable to be tax - period involved is July, 2003 to 31.03.2006 - Appellant contended that Service Tax liability in respect of ATM machines was brought into statute w.e.f. 01.05.2006 and hence no liability arises for the material period.
Held that:- the provisions of Section 65(9a) & (9b) clearly indicates that any services rendered in relation and respect of ATM machines are taxable from 01.05.2006. It is undisputed that the appellant had rendered the services of Installation and various services in respect of Automated Teller Machines. It is found that Tribunal’s decision in the case of NCR Corporation India Pvt. Ltd. Vs. Bangalore [2008 (5) TMI 27 - CESTAT BANGALORE] was considering the self same issue and held in favour of the assessee that services rendered in respect of Automated Teller Machines are taxable from 01.05.2006. The self same issue for the very same period was before the Tribunal in the appellant’s case wherein, Revenue authorities wanted to tax these services under Erection, Commission and Installation Services or under Works Contract Services. The Tribunal held that the services rendered by the appellant in respect of Automated Teller Machines cannot be taxed prior to 01.05.2006.
Therefore, now the issue is settled in favour of the appellant, and the impugned order holding the services rendered by the appellant in respect of Automated Teller Machines are taxable under any other category prior to 01.05.2006 is erroneous. Accordingly, that portion of the impugned order which confirms the Service Tax liability along with interest on this point is liable to be set aside.
Liability of Service tax - Goods Transport Agency - Held that:- agreement talks about movement of Automated Teller Machines by paying sum, which would mean the appellant had rendered services to do with movement of Goods during the material period. In our view the appellant had no case on merits, on holistic reading of clauses of agreement, leads to inevitable conclusion that the said agreement is for movement of ATM’s to various locations, and appellant is paid for such movement of ATM’s.Therefore, the services rendered by appellant would fall under category of Goods Transport Agency Servicesand accordingly liable to Service tax along with interest.
Imposition of penalties - Section 76, 77 and 78 of the Finance Act, 1994- Goods Transport Agency - Held that:- since majority of demand is set aside in respect of Automated Teller Machines, we hold that there is no reason for visiting appellant with penalty in respect of Goods Transport Agency as in our view appellant could have entertained a view that the movement of ATM’s is not covered under Goods Transport Agency Services. Therefore, penalties imposed are set aside. Revenue’s appeal seeking to the enhance penalty under Section 76 consequently fails. Appeal disposed of
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