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Service Tax - Case Laws
Showing 101 to 111 of 111 Records
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2016 (7) TMI 129
Waiver of pre-deposit - Valuation - works contract service - the distinction to be drawn between of value of the goods supplied as works contract and the value of service rendered for the purpose of service tax - reconsideration of its earlier order by the tribunal - Held that:- 67% abatement was duly allowed (as the value of the goods was included in the gross receipts) for the purpose of arriving at the value of service. As regards the issue of taxability under the CICS/construction service when the service was rendered under Works Contract, while this issue was touched upon in para 3 of the stay order No. 51340/2014 dated 28/07/2015 (partially quoted above) it was considered in greater detail, taking due note of the Hon’ble Supreme Court judgment in the case of CCE, Kerala vs. Larsen & Toubro Ltd. [2015 (8) TMI 749 - SUPREME COURT] and others mentioned in para 4 of the Hon’ble High Court order, in the CESTAT order passed in appellant’s miscellaneous application on 09/2/2016
Thus, with due respect to Hon’ble High Court’s order, we find that the CESTAT stay order dated 28/7/2015 readwith the CESTAT’s miscellaneous order dated 09/2/2016 adequately covered the two points mentioned in para 4 of the High Court’s order for the interlocutory purpose of arriving at the amount of pre-deposit. Accordingly, we are of the considered view that there is no ground to alter the amount of pre-deposit ordered earlier vide stay order dated 28/7/2015..
Stay order not modified - assessee directed to comply with the order of pre-deposit - Decided against the assessee.
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2016 (7) TMI 128
Demand of service tax from the Sub-contractor - levy of penalty - there was a written agreement between the appellant and main contractor to the effect that the main contractor would discharge the service tax liability of the subject work. That on the strength of such agreement appellant neither paid tax nor filed returns for the subject work. - Held that:- the contention of the appellant that the failure to pay tax was because the appellant bona fidely believed that the main contractor would discharge service tax liability as stated in the agreement is not without merits.
The second issue is the penalty imposed on account of failure to take registration. it has to be stated, that this is not a case where the appellant totally failed to take registration. Appellant had registration under the category Works Contract Service and not under commercial or industrial construction service. Department is of the view that the service would fall under Commercial or Industrial Construction Service. Both being construction services, the contention of the appellant that they believed that services would fall within the category of works contract service is probable and acceptable.
Demand of service tax with interest confirmed - Levy of penalty u/s 77 & 78 waived invoking the provisions of section 80 - Decided partly in favor of assessee.
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2016 (7) TMI 92
Valuation - transportation of passengers by air service - inclusion of fuel and insurance surcharge as well as on passenger service fee and airport tax - suppression of facts - extended period of limitation - Held that:- it is clear that the airlines association has taken up the issue of fuel and insurance surcharge with the CBEC which issued the clarification. In the circumstances, it is totally untenable to even allege suppression/ wilful mis-statement with regard to service tax demand pertaining to fuel surcharge. We have perused the Show Cause Notice also and find that the allegation of wilful suppression of taxable value has been made essentially on the ground that the appellant did not include the fuel surcharge, PSF and airport taxes in the assessable value and failed to file correct ST-3 returns (meaning that the assessable value shown in the ST-3 returns did not include the PSF and airport taxes and fuel and insurance surcharge).
The Show Cause Notice does not even remotely bring out as to how it was a wilful act to evade service tax and the airline was aware that the same were includible in the assessable value.
Mere omission to give correct information is not suppression of facts unless it was deliberate and that an incorrect statement cannot always be equated with wilful mis-statement. Thus, the ingredients required for imposing penalty under Section 78 ibid are conspicuously absent in this case.
Demand pertaining to passenger service fee and airport taxes is set aside and the penalty under Section 78 ibid is also set aside. - Decided partly in favor of asessee.
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2016 (7) TMI 91
Rejection of Refund of cenvat credit without issuing show cause notice - export of services - wrong application of formula prescribed in the Notification No.5/2006-CE(NT) dt. 14/03/2006. - further since there was DTA services provided by other units of the appellant, the original authority observed that CENVAT credit eligible for refund has to be restricted proportionately - principles of natural justice - Held that:- Admittedly, no show-cause notice was issued to the appellant specifying the grounds on which the refund claim is proposed to be rejected. No personal hearing was given at the stage of original adjudication. Thus appellant has been totally deprived of knowing the allegations or putting forward, a defence against the grounds for rejection of refund.
Thus there has been in a way application of the formula twice over. Similar issue was considered by Tribunal in the case of CST, Mumbai-I Vs. Global Markets Centre (P) Ltd. [2015 (2) TMI 271 - CESTAT MUMBAI]. The Tribunal observed that the formula used the word total CENVAT credit taken on input services . Therefore the inadmissible part of input services cannot be deducted before applying the formula.
In the absence of show-cause notice, the rejection of ₹ 4,41,981/- is unsustainable. For the reasons discussed in earlier paragraphs, the impugned order to the extent of rejecting the refund claim of ₹ 4,41,981/- is also set aside. The appellant is eligible for refund of ₹ 57,58,829/- as claimed in the refund application. - Decided in favor of assessee.
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2016 (7) TMI 90
Classification of service - nature of contract - material handling contract versus manpower, recruitment or supply agency service - Held that:- On bare perusal of the work order/work schedule, it is seen that it does not state that particular number of labour/employees should be recruited. The payment is fixed according to the work executed and not according to the number of persons employed. As per the agreement, the respondents are to execute the activities described in work schedule in the premises. The payment is paid as per completion of the work and not according to the labour employed.
There is no whisper in the contracts for supply of manpower to Hindustan Zinc Ltd. The entire essence of contract is the execution of work detailed in the work schedules. Therefore, the view of the Commissioner (Appeals) that it is lumpsum work, which would not fall under the category of providing of manpower supply service does not call for any interference. - No demand - decided against the revenue.
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2016 (7) TMI 89
Construction services - Levy of service tax on works contract prior ot 1.6.2007 - inclusion of value of free supplies - eligibility of Composition Scheme - abatement of 67% - Held that:- construction of hospitals for charitable organization (e.g. B.L. Kapoor Hospital) is covered within the scope of the scope of commercial construction and hence liable to S.T. under C.I.C.S..
Matter remanded back for de novo adjudication as the demand/interest/penalties will have to be re-determined.
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2016 (7) TMI 52
Refund of service tax paid under the Construction of Complex Service which was not payable - unjust enrichment - refund to be made the appellant or to the buyers of the flats - The appellant appeared and contested the show cause notice stating therein that the customers of the appellant are demanding refund of the service tax amount paid by them, in view of the clarification by the board that service tax was not payable and accordingly, the refund may be granted directly to the buyers of the flats.
Held that:- the assessee is not entitled to refund, but it is customers of the assessee, who purchased flats, are entitled to the refund - the appellant have filed the details of his customers, with the revenue in the adjudication of the refund proceedings. The assessee also mentioned that the customers are pressing for refund and some of them have also approached various judicial forums, including the Consumer forum. In view of this matter, I set aside the impugned order and remand the issue back to the adjudicating authority, who shall examine the whereabouts of the person's who deposited the service tax to the appellant, for the purchase of flats, and after such verification having been carried out, shall grant refund to the buyers of the flats out of the said amount of ₹ 16,85,956/-.
The Adjudicating Authority shall issue the refund cheques in favour of the respective buyers of the flats, to which the appellant assessee shall not be entitled to make any objection - Decided in favor of assessee by way or remand.
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2016 (7) TMI 49
Waiver of pre-deposit - Commercial or industrial construction service - Construction of sports stadium for Commonwealth Games - construction of watch tower and raising height of security wall around Siri Fort Sports Complex for security purpose in connection with Commonwealth Games and after the Commonwealth Games, these were pulled down as they were no longer required - Held that:- appellant has made out a case for complete waiver of pre-deposit and we order accordingly staying recovery of the impugned liability during pendency of the appeal - Stay granted.
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2016 (7) TMI 48
Refund - sampling, weighing and stuffing supervision and travelling charges as per evidence available cannot be covered under the scope of technical testing and analysis service and therefore refund on that count is not admissible.
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2016 (7) TMI 47
Refund of service tax on services used for export of goods - Notification No. 41/2007-ST - Held that:- Following the precedents laid down by the CESTAT orders, referred to above and in view of ld. Consultant’s concession, the appeal is allowed in the following terms: (i) Claim of ₹ 8,464/- pertaining to six shipping bills is held to be time-barred. - (ii) The refund claim relating to cleaning activity and technical inspection certification service is held to be inadmissible. - (iii) The remaining amount out of the impugned refund is held to be admissible. - Decided partly in favor of assessee.
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2016 (7) TMI 46
Waiver of pre-deposit - Construction services - appellant argued that most of commercial or industrial activities have taken place in respect of construction of dams and related to the structure and therefore the same is not chargeable to service tax. He also argued that the residential complexes constructed by them was used by the service recipient and therefore, the same is also not covered by the definition of “residential complexes” as defined under section 65(91a) of the Finance Act, 1994 - considering the rival submission, stay granted partly.
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