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Service Tax - Case Laws
Showing 1 to 20 of 111 Records
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2016 (7) TMI 1673
Denial of benefit of abatement of 67% in terms of notification No. 1/2006 - denial on the ground that the appellant have simultaneously availed the cenvat credit of duty - HELD THAT:- Revenue has no objection to the early hearing and submits that the matter can be remanded to the lower authorities for fresh consideration in the light of above referred decision of the Hon’ble Supreme Court in COMMISSIONER, CENTRAL EXCISE & CUSTOMS VERSUS M/S LARSEN & TOUBRO LTD. AND OTHERS [2015 (8) TMI 749 - SUPREME COURT], inasmuch as the same was not available at the time of adjudication.
The matter is remanded back to the original adjudicating authority for fresh decision.
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2016 (7) TMI 1663
Valuation of services - works contract service - inclusion of value of the free supplied items by the appellant from service recipients in the value of the services - whether the works contract were liable to tax before 01/6/2007 - HELD THAT:- The issues stand decided by the Larger Bench decision of the Tribunal in the case of M/S BHAYANA BUILDERS (P) LTD. & OTHERS VERSUS CST, DELHI & OTHERS. [2013 (9) TMI 294 - CESTAT NEW DELHI (LB)] as also by the Hon’ble Supreme Court decision in the case of COMMISSIONER, CENTRAL EXCISE & CUSTOMS VERSUS M/S LARSEN & TOUBRO LTD. AND OTHERS [2015 (8) TMI 749 - SUPREME COURT]. At this stage, learned DR submits that the matters may be remanded to the original Adjudicating Authority for examining the applicability of the said decision to the fact of the case in as much as number of contracts are involved and the other issues regarding the non-payment of tax in respect of various charity/educational/non-commercial contracts are also involved.
The impugned orders is set aside and both the appeals remanded to the original Adjudicating Authority for denovo adjudication in the light of the above declarations of law - appeal allowed by way of remand.
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2016 (7) TMI 1544
Grant of four weeks' time to take steps for service of notice upon respondent no. 2 - HELD THAT:- The time as sought for is permitted.
Respondent no. 1 prays for and is granted two weeks' time to file the counter affidavit.
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2016 (7) TMI 1401
Valuation - includibility - value of the free supply diesel by the recipient of the service - Held that: - similar issue decided in the case of CCE, Bhopal Versus M/s SB. Earth Movers Pvt. Ltd. [2014 (11) TMI 872 - CESTAT NEW DELHI], where it was held that the value of free supplies by the service receiver to the service provider is not includible in the ‘gross amount charged’ by the service provider from the service receiver - appeal allowed - decided in favor of appellant.
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2016 (7) TMI 1397
Condonation of delay - decision in the case of Commissioner of Service Tax, Mumbai-I Versus ICICI Bank Ltd. And Vica-Versa [2015 (9) TMI 1036 - CESTAT MUMBAI] contested - Held that: - Delay condoned - Issue notice.
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2016 (7) TMI 1378
Refund claim - Unjust enrichment - cum-tax computation - deposit of tax which was not leviable - Service tax was paid as Clubs or associations service on amounts collected as entrance fee for admission of new members - the decision in the case of The Cricket Club of India Ltd. Versus Commissioner of Service Tax, Mumbai [2015 (9) TMI 1389 - CESTAT MUMBAI] contested, where it was held that tax burden has not been transferred to the members from whom entrance fees were collected. Clearly, the service tax so paid does not carry the taint of unjust enrichment - Held that: - delay condoned - appeal admitted.
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2016 (7) TMI 1357
Refund claim - N/N. 41/2012-ST dated 29.06.2012 - Held that: - since the taxable services were utilized by the appellant for movement of goods between the factory and the port of export, and not used beyond the place of removal, denial of refund benefit by the authorities below are in conformity with the Not. dtd. 29.06.2012 - in view of the retrospective amendment of the Not. dtd. 29.06.2012, vide No.1/2016 dated 03.02.2016 and the clarification contained in Section 160 of Finance Act, 2016, refund benefit, should be available to the appellant - matter is remanded to the original authority for re-consideration of the issue - appeal allowed by way of remand.
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2016 (7) TMI 1351
Erection, Commissioning or Installation Services - assessee case is that in view of N/N. 45/2010-S.T., dated 20-7-2010, all taxable services relating to transmission and distribution of electricity provided by any service provider would not be taxable for the periods up to 26-2-2010 and up to 21-6-2010 respectively for services relating to transmission and distribution of electricity - Held that: - issue at hand has been considered in the case of M/s West Bengal State Electricity Transmission Company Ltd And Others Versus Commissioner of Service Tax, Kolkata And Others [2015 (5) TMI 108 - CESTAT KOLKATA], where it was held that no service tax is required to be paid for rendering services in relation to transmission and distribution of electricity during the period mentioned in the said Notification - appeal dismissed - decided against Revenue.
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2016 (7) TMI 1350
Service Tax – Cargo handling service - the decision in the case of SB CONSTRUCTION COMPANY Versus UNION OF INDIA [2006 (8) TMI 28 - RAJASTHAN HIGH COURT] contested, where it was held that Services provided by petitioner such as transporting coal from wagons to thermal power station by conveyor belt and without use of any transportation does not fall under the ambit of cargo handling services - Held that: - the decision in the above case upheld - appeal dismissed - decided against appellant.
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2016 (7) TMI 1346
100% EOU - Refund of unutilised CENVAT credit - Whether the CESTAT is correct in holding that the assessee was within time in claiming refund without discussing the Sec. 11B relevant for refunds under Rule 5 of CCR, 2004 read with N/N. 05/2006-C.E. (N.T.), dated 14-3-2006 and merely relying on the decision of Hon’ble CESTAT, Mumbai in the case of CCE, Pune-I v. Eaton Industries Pvt. Ltd. [2010 (12) TMI 71 - CESTAT, MUMBAI]? - Held that: - the decision in Bechtel’s case [2013 (7) TMI 490 - CESTAT NEW DELHI] being a decision rendered by Division Bench was approved and held to prevail - it was held in the case that In case of export of Services export is complete only when foreign exchange is received in India, relevant date of export of services is date of receipt of foreign exchange - decided against Revenue.
Whether CESTAT is correct in holding that the assessee is eligible to claim of refund of Cenvat credit on construction service relying on case of Infosys Ltd. [2014 (3) TMI 695 - CESTAT BANGALORE], where it was held that assessee is entitled to the Cenvat credit on construction services? - Held that: - the appellant in the Grounds of Appeal mentioned that as against the Infosys Ltd.’s case (supra), the department filed appeal before the Hon’ble Apex Court and the same is pending but failed to produce copy of the Grounds of Appeal or any stay order granted by Hon’ble Apex Court staying the judgment in Infosys Ltd.’s case (supra). It is also not known whether a final order is passed by the Apex Court in the said alleged appeal. In these circumstances, we can only uphold the decision of the CESTAT, Bangalore relying on Infosys Ltd.’s case - decided against Revenue.
Whether the Tribunal is correct in remanding the matter with regard to the claim of refund of Cenvat credit on other services such as courier service, repair or maintenance services, telephone service, rent-a-cab service, management consultant service, chartered accountant service, etc., since the said services are not having nexus with their output services i.e. Consulting Engineering Service which was exported online? - Held that: - This point is concerned, the CESTAT, Bangalore only remanded the matter to the original adjudicating authority to consider the other refund claims afresh. As such, we do not find any infirmity or irregularity therein.
Appeal dismissed - decided against Revenue.
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2016 (7) TMI 1325
CENVAT credit - repair work done for the factory - Courier Agency Service - Held that: - Availing of the services of courier being indispensable, Cenvat credit of the service tax paid thereon is admissible.
Repair work done for the factory - Held that: - Works Contract Service is rendered to repair the factory for the purpose of mandatory compliance to the Factories Act. Therefore appellant is also entitled to the Cenvat credit of the service tax paid for the Works Contract Service availed.
Appeal allowed - decided in favor of appellant.
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2016 (7) TMI 1307
Maintainability of petition - Pre-deposit - Section 35F of the CEA, 1944 - section has been amended with effect from 6th August, 2014 by section 105 of the Finance ( No.2) Act, 2014 - it is submitted by the counsels for the Union of India that the newly substituted section 35F has diluted earlier provisions, so far as the amount to be deposited is concerned. Originally 100% was to be deposited whereas now, only 7.5% or 10% is to be deposited. Thus, 92.5% or 90% of the duty demanded or the penalty levied is already waived by the new section 35F, in each and every case, without any order of Tribunal or without any order of the Commissioner (Appeals) and without any application for waiver of deposit - It is also submitted by the counsels for the Union of India that in a statute relating to taxation, the government should be allowed greater latitude with respect to classification for imposing tax.
Held that: - the substituted Section 35 F of the Act, 1944 is not applicable to the stay applications and appeals already preferred or pending before any appellate authority, prior to commencement of the Finance (No.2) Act, 2014, which shows the clear intention on the part of Legislature, meaning thereby Finance (No.2) Act, 2014 shall be applicable to all the stay applications and appeals which are being preferred on or after 6th August, 2014. Thus, effect of Section 6 of the General Clauses Act, 1897 is being taken away by 2 nd proviso to Section 35F of the Act, 1944, which is the “different intention” of the Legislature.
The legislature, in its wisdom, has thought it fit to extend the benefit of the Scheme to such of those assessees whose tax arrears are outstanding as on 31-3-1998, or who are issued with the demand or show-cause notice on or before the 31st day of March, 1998, though the time to file declaration for claiming the benefit is extended till 31-1-1999.
In extreme cases always the assessees can take recourse to the writ jurisdiction under Article 226 of the Constitution of India. Few extreme cases will not make the substituted Section 35F of the Act, 1944 unconstitutional. All care can be taken with respect to such types of cases under Article 226 of the Constitution of India. “Ubi jus, ibi remidum” - where there is wrong, there is remedy.
How the cut off date has to be fixed and the nature of the cut off date etc. is to be left at the discretion of the legislature. The court should be slow to interfere or in altering a cut off date. The cut off date in question is 6th August, 2014 and looking to the second proviso to Section 35F if any stay application or appeal is already preferred and pending before the appellate authority before 6th August, 2014, those will not be governed by the newly substituted Section 35F. This is the intention of the legislation, in no uncertain terms, meaning thereby that with respect to appeals preferred on or after 6 th August, 2014, the newly substituted Section 35F shall be applicable.
Substituted Section 35F, is not at all confiscatory in nature. On the contrary it is more than reasonable and leaning more towards the assessee rather than the revenue.
The petitioner would not be justified in urging that the amended provisions of Section 35F(1) of the Act would not apply merely on the ground that the notice to show-cause was issued prior to the enforcement of Finance (No. 2) Act, 2014 - endless litigations, arising out of waiver applications, have been brought to an end and looking to the very meager percentage of the amount to be deposited, Section 35F- as amened cannot be said to be violative of Article 14 of the Constitution of India much less of Article 19(1)(g) of the Constitution of India.
Petition dismissed - decided against petitioner.
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2016 (7) TMI 1280
CENVAT credit - trade promotion service - insurance/public relation service - cargo handling service - mobile repair services - denial on account of nexus - Held that: - The Cenvat Credit Rules prevalent at the material time provided “activity relating to business” for the purpose of consideration as input service. Since the expenses incurred on the disputed services were in relation to the business activities of the appellant, Cenvat credit on the disputed services cannot be denied on the ground that there is no nexus between the input and the output services.
With regard to the trade promotion service, taking of Cenvat credit is not in conformity with Rule 9 of the CCR, 2004, credit rightly denied.
Appeal allowed - decided partly in favor of appellant.
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2016 (7) TMI 1279
Refund claim - transportation services - denial on the ground that these are reimbursable charges and not related to the composite nature of activities undertaken by the customs house agent - N/N. 17/2009-S.T., dated 7th July, 2009 - Held that: - The Tribunal in Commissioner of Central Excise, Ahmedabad v. Dishman Pharma & Chemicals Ltd. [2010 (10) TMI 355 - CESTAT, AHMEDABAD] has held that refund is not deniable merely because bills have been raised by issuer registered as provider of a different taxable service - these lorry receipts, not having been subject to scrutiny, are required to be verified - Appellant uses road transport service for delivery of export goods to the port of loading and the charge includes the tax liability discharged by the agent on behalf of appellant. There can be no doubt that this tax is eligible to be refunded - appeal allowed by way of remand.
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2016 (7) TMI 1271
Works contract - composition scheme - The stand of the department in the said show cause notice, as discernible therefrom, is that after the enhancement of rate of service tax from 2% to 4% and the petitioner having exercised the option on 26th March, 2008, the payment @ 2% of the service tax on the works contract amounts to evasion of the tax - extended period of limitation - petitioner's claim is that the composite scheme which came into effect from 1st June, 2007 gives an option to the service tax provider under the works contract to pay service tax in relation thereto by paying an amount equivalent to 2% of the gross amount charged for the works contract.
Held that: - this Court does not find any error both on facts or law that at the time of exercising an option the rate of tax under the said beneficial scheme was 4% and therefore the petitioner cannot continue to deposit the rates under the said beneficial scheme at the rate of 2%. It admits no ambiguity to say that the rate prevalent at the time of exercising an option would continue until the expiration of the work’s contract and any variation and/or changes in the rate of tax by subsequent notification the department would not be within its authority to charge more as such changes would not be applicable to the existing work’s contract.
Petition allowed - decided in favor of petitioner.
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2016 (7) TMI 1224
Rejection of refund claim - terminal handling charges - inland haulage - bill of lading charges - repo charges - N/N. 41/2007- ST dated 6.10.2007 - whether rejection of claim on the ground that these services are not port services, justified? - Held that: - the issue is no more res-integra as decided in the case Shivam Exports and others vs. CCE, Jaipur, [2016 (2) TMI 259 - CESTAT NEW DELHI] where it was held that refund of service tax paid on terminal handling charges, repo charges and Bill of lading charges and haulage charges are available to the exporters. Similarly in respect of Service Tax paid on the transportation services for movement of empty containers from the port area back to the factory was considered to be a service in respect of which the Service Tax paid on the same was available as refund to the assessee in terms of notification No. 41/07.
Production of proper invoices and debit notes - Held that: - the decision in the case of M/s. SRF Ltd. vs. CCE Jaipur [2015 (9) TMI 1281 - CESTAT NEW DELHI] relied upon where it was held that if the documents produced are debit notes and giving all the details and particulars as required under Rule 4A of the STR 1994, the refund cannot be denied on the technical ground that the documents are not invoices but debit notes.
In the case of M/s. Satyam Enterprises, a part of the refund claim to the extent of ₹ 23,956/- (Rupees Twentythree thousand nine hundred fifty-six only) stand denied on the ground that the goods were not exported by the assessee themselves but were exported through merchant exporters in which case, refund cannot be granted to the appellant. Learned advocate appearing for the said appellant submits that he is not challenging the said part of the impugned order passed in the case of M/s. Satyam Enterprises.
appeal disposed off - decided in favor of appellant except the refund of ₹ 23,956/- (Rupees Twenty-three thousand nine hundred fifty-six only) involved in the case of M/s. Satyam Enterprises.
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2016 (7) TMI 1220
Cenvat credit - service tax paid on availment of security service, renting of immovable property and maintenance of sales office - Held that:- to protect the property relevant to business, the security service is admissible input service to be eligible for CENVAT credit. When the very property is used for the purposes of carrying on business, there is no reason to disallow CENVAT credit of the service tax paid in respect of renting of immovable property. So far as the maintenance of sales office is concerned, there is no nexus establishing correlation between input service and output service or output. Accordingly there shall be no admissibility of CENVAT credit on service tax paid on this count. - Decided partly in favour of appellant
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2016 (7) TMI 1209
Export of services or not - place of performance is in India - Business Auxiliary Service (BAS) and Business Support Service - services were provided to foreign customers - manpower recruitment or supply agency service - Held that:- when the person on whose instructions the services, in question, has been provided and is located abroad, the destination of services, in question, has to be treated abroad. The destination has to be decided on the basis of place of consumption, not the place of performance of service in case of Business Auxiliary Service - the impugned order regarding service tax liability of the appellant on these services is not legally sustainable.
Regarding manpower recruitment and supply agency service - deputation of employees - Held that:- The reimbursement amount paid by the appellant to the foreign companies is relating to the cost of salaries and wages of the employees working under the appellant. In CCE vs. Computer Sciences Corporation India Pvt. Ltd.(2014 (11) TMI 125 - ALLAHABAD HIGH COURT) the Tribunal held that for tax purposes the service provided must be by a manpower recruitment agency and such a service has to be in relation to supply of manpower. In CCE vs. Arvind Mills Ltd. (2014 (4) TMI 132 - GUJARAT HIGH COURT), the Hon’ble Gujarat High Court held that deputation of employees from one company to another does not involve profit or finance benefit there is no relationship of agency and client involved in such deputation. In Volkswagen India Pvt. Ltd. vs. CCE (2013 (11) TMI 298 - CESTAT MUMBAI) the Tribunal held when the global employees working under the Indian company are working as their employees and having employee employer relationship there is no supply of manpower service and no tax liability arises.
Demand set aside - Decided in favor of assessee.
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2016 (7) TMI 1208
Cenvat Credit of service tax paid under reverse charge method - import of business auxiliary services from group compaines abroad and GTA services - the service tax was paid by the appellant through e-payments by the head office - debit notes - duty paying documents - Held that:- debit notes and e-payment challans are valid documents for claiming CENVAT credit on input services as per Sub-rule (1)(e) of Rule 9 which clearly specifies that CENVAT credit can be availed on challan evidencing payment of service tax by the service recipient as a person liable to pay service tax.
Regarding GTA services, appellant failed to produce documents showing how much of it was for inward transportation of inputs and how much for outward transportation of finished products.
The appellants have rightly taken CENVAT credit of ₹ 12,19,140/- on the basis of debit notes and ₹ 4,24,878/- on the basis of e-payment challans and disallow CENVAT credit taken on GTA services of ₹ 87,132/- The question of penalty does not arise as the appellants have not concealed any material facts from the Respondent. - Decided partly in favor of assessee.
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2016 (7) TMI 1207
Refund of un-utilized Cenvat Credit - 100% EOU - appellant is exporting entire taxable services in terms of Export of Service Rules 2005 - two different yardstick, one for permitting credit and the other for eligibility for granting rebate - Held that:- the impugned order is not sustainable in law in view of the fact that all the services for which CENVAT credit of service tax has been denied are in fact input services and the appellant is entitled to get refund of CENVAT credit lying unutilised in the CENVAT credit account - Refund allowed - Decided in favor of assessee.
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