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Service Tax - Case Laws
Showing 21 to 40 of 111 Records
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2016 (7) TMI 1177
Levy of penalty - It was contended that on merits Appellant had a good case, but to buy peace this issue was not agitated on merits and amount along with interest was paid. - issues pertaining to eligibility of Cenvat Credit - duty paying documents - invoices in the name of head office - Held that:- So far as non-imposition of penalty for credits taken with respect to telephonic services and certain improper documents in the name of head office it is observed that Appellant is not contesting those issues and have paid these amounts. Penalties imposed under Section 78 of the Finance Act, 1994 is required to be set aside as there are conflicting case laws on these issues. - No penalty - Decided in favor of assessee.
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2016 (7) TMI 1176
Business Auxiliary services - income from ocean freight is more than the ocean freight expenses. - It appeared to the Department that service tax was not paid on ocean freight charges and that further, ocean freight charged and collected from the shipper was more than the ocean freight amount paid to the shipping lines. - It was also appeared to the Department that services provided by the appellant to SEZ units were also liable for service tax liability.
Held that:- the predominant part of the demand viz. that relating to service tax held as payable on the reimbursable amounts, being covered by the cases referred to by the learned advocate for the appellant. We also find that Mumbai Tribunal order in the case of CCE, Goa Vs. Machado & Sons Agents & Stevedors Pvt. Ltd. (2016 (5) TMI 374 - CESTAT MUMBAI) has distinguished the Larger Bench decision in Sri Bhagavathi Traders [2011 (8) TMI 430 - CESTAT, BANGALORE]. In respect demands, we note that the appellants have already deposited ₹ 10 lakhs during investigation. In the circumstances, we find that balance of convenience lies in favour of the appellants in the matter of stay and we, therefore, order full waiver of pre-deposit beyond the ₹ 10 lakhs already deposited by them. There will be stay of recovery in the matter pending disposal of the case.
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2016 (7) TMI 1175
Refund of un-utilized cenvat credit - brought forward of credit - determination of amount to be refunded for export of services for the relevant period - amount of CENVAT credit restricted as per service tax return for the quarter - Rul 5 of CCR - export of Information Technology Software Services during the period April-June,2012 - Held that:- It was held in the case of WNC Global Ltd [2015 (11) TMI 905 - CESTAT MUMBAI] that for the purpose refund, Cenvat credit of any particular quarter will include the amount of brought forward credit as well from the earlier quarter therefore following the ratio of the said decision, even though credit was availed in February 2012 the same was lying in the balance as on 31 March, 2012, the same was carried forward to April, 2012 and therefore opening balance of April, 2012 will also be included for the purpose of taking the net Cenvat credit in the quarter April-June, 2012. It is also pertinent that undisputedly entire services of the appellant are exported, in such case entire Cenvat credit availed by the appellant has to be refunded to them.
It is also pertinent that undisputedly entire services of the appellant are exported, in such case entire Cenvat credit availed by the appellant has to be refunded to them. In my view the formula provided in the notification for calculation of refund amount is workable only in a situation when the assessee is engaged in the provisions of services which are exported as well as provided in the domestic market. For this reason also the appellant being 100% exporter of services is entitle for the refund of brought forward amount of ₹ 6,12,463/-
Refund allowed - Decided in favor of assessee.
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2016 (7) TMI 1174
Refund of unutilized cenvat credit - export of services - input services - service tax paid on the premium charged on group insurance scheme - Held that:- it appears that tax paid on insurance premium is eligible for availment as CENVAT Credit and the short-point for determination is the extent to which the premium does not relate to coverage of employees under the group insurance scheme. In the instant case, the appellant is charged with a premium which does not vary with the number of dependents who are additionally covered by the same insurance scheme. In other words, even if none of the dependents were within the coverage, the premium amount would not alter or vary. Accordingly no part of the premium can clearly be distinguishable as or attributable to the extension of coverage to family members. - Credit allowed - Decided in favor of assessee.
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2016 (7) TMI 1154
Taxability of services provided by the SEZ unit to the DTA unit of the same assessee - principle of mutuality - Held that:- Identical issues raised by the same assessee for assessment year came up for consideration in [2016 (7) TMI 307 - GUJARAT HIGH COURT] The Tax Appeals of the Government were dismissed. - These Tax Appeals are also dismissed.
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2016 (7) TMI 1153
Waiver of pre-deposit - tribunal directed the appellant to deposit an amount at ₹ 15 lakhs and declining to accept the plea of the Appellant that credit should be given to the sum of ₹ 9.23 lakhs already deposited by Appellant along with the returns in Form ST-3 for the period 2008-10. - Held that:- the impugned order dated 15th March 2016 of the CESTAT is modified and it is directed that in view of the Appellant having already deposited ₹ 9.32 lakhs and having further deposited ₹ 5.77 lakhs on 16th May 2016, there will be no requirement for the Appellant to make any further payment by way of pre-deposit in terms of the impugned order of the CESTAT. The CESTAT will now hear the appeal pending before it on merits.
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2016 (7) TMI 1152
Claim of refund - services used for export of goods - Notification No. 41/2007-ST dated 6.10.2007 - Refund was rejected on the ground that the appellant had availed drawback in respect of goods exported under Customs, Central Excise Duties and Service Tax Drawback Rules, 1995 - Held that:- the analysis and conclusion drawn on this issue in terms of para 2 (reproduced above) of the judgement of CESTAT in the case of Bharat Art and Crafts [2016 (4) TMI 197 - CESTAT NEW DELHI] remain valid and there is nothing in the pleadings/contentions of the appellant which in any way adversely affects the efficacy of the said analysis. Thus the exemption Notification No. 41/2007-ST is rendered inapplicable in the case of such exports where the appellant claimed drawback under the Drawback Rules. - Decided against the assessee.
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2016 (7) TMI 1151
Refund - period of limitation - retrospective exemption on all taxable services relating to Transmission and Distribution of Electricity provided by a service provider to a service receiver during the period 26.02.2010 to 21.06.2010 - refund claim is filed on 11.07.2011 which is after lapse of six months from issue of notification and hence is hit by time bar.
Held that:- We find that both the apparently conflicting provisions in section 11(B) vis-a-vis 11 (C) ibid, with regard to time limit prescribed to file refund claim are in fact harmonious with each other. Each has its own place, purpose and intention in the statute. The time limit of six months provided in Section 11 (C) will normally be applicable in respect of refund claims emanating out of notifications issued under that section. However, if the issue involved in such 11 (C) notification is also subjudice in any Court etc., the said provision of Section 11 (C) will stand eclipsed by the general provision of Section 11 (B). The general provision of S 11 B 5 (ec) will then take precedence over the special provision in S 11 C ibid. In such a case, by implication the refund claimant will legally become entitled to file the claim within a time limit of one year from the date of judgment, decree, order or direction of appellate authority, Tribunal or Court in view of clause (ec) of explanation B of S 11 B (5) ibid
The limitation can therefore start clicking only from the date of final judgment /decree/decision of Court/Tribunal/Appellate Authority. In this case therefore the limitation period will only start, at the earliest, after 23.05.2016 i.e. date of Final Order No. A/30489/2016 stated above.
Refund is not hit by infirmities of time bar and cannot also be rejected on the ground that the Notification No. 45/2010-ST is not applicable to the appellant - Decided in favor of assessee.
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2016 (7) TMI 1127
Refund of unutilized cenvat credit - export of services without taking registration - Rule 5 of Cenvat Credit rules 2004 read with Notfn No.5/2006-CE (NT) dt. 14.3.2006 - Held that:- The contention of the respondent is that under Section 69 of the Finance Act, 1994 read with Rule 4 of Service Tax Rules, 1994, registration under service tax legislation is required only for service providers who are liable to pay service tax and the respondent herein is predominantly engaged in the provision of export of service and therefore they are not liable to pay service tax and consequently not required to register with the department. - Following the decision in the case of mPortal India Wireless Solutions Pvt. Ltd. [2011 (9) TMI 450 - KARNATAKA HIGH COURT], refund allowed as they are eligible for refund of the unutilized credit which was accumulated prior to registration. - Decided against the revenue.
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2016 (7) TMI 1126
Levy of penalty u/s 76 of the Finance Act, 1994 - Service Tax on Renting of Immoveable Property Service was paid through Cenvat Credit account available on that day along with interest vide GAR 7 Challan - the adjudicating authority as well as the appellate authority held that the payment of service tax made from cenvat credit is not proper for the reason that the service tax dues are pertaining to the period 2007-08 to 2009-10 whereas the appellant have paid service tax from cenvat credit which was available on 31.1.2011. It was contended that as per Rule 3(4) of Cenvat Credit Rules, 2004. The Cenvat Credit available on the last day of the period for which service tax is due can only be utilized.
Held that:- From the circular dated 28-3-2012, it is very clear that if payment of arrears is made under Section 11A of the Act, then Rule 3(4) of Cenvat Credit Rules, 2014 shall not apply. In the present case the appellant has paid the amount under Section 73 (1)/73 (3) which being pari materia to Section 11A, the Board Circular clearly applies and accordingly there is no restriction to utilize the Cenvat Credit even at later date at the time of payment of service tax.
In the present case the service tax along with interest was paid in the months of February 2011 i.e. before 28.5.2012. Accordingly, the condition specified for non-imposition of penalty under Section 76, 77 & 78 has been complied with by the appellant. Therefore no penalty is imposable in the present case. - Demand and penalty set aside - Decided in favor of assessee.
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2016 (7) TMI 1080
CENVAT Credit - whether circular is binding upon the revenue - service tax on GTA service availed by the appellant for outward transportation of the goods from the factory to the customer - any assessee/party may agitate binding effect of the circular but it would not lie in the mouth of the Department-appellant herein to contend that the circular is not binding. Under the circumstances, we do not find that merely because the matter is carried before the Apex Court against the decision of the Calcutta High Court, there would be any case for consideration, on the contrary, no substantial questions of law would arise since the availment of CENVAT credit is expressly made so permissible by the circular issued by the competent authority and the appellate authority having found that all conditions of the circular were satisfied. - Decided against the revenue.
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2016 (7) TMI 1079
Waiver of penalty u/s 80 - the penalties imposed under Section 76,77 & 78 were set aside by the Ld. Commissioner (Appeals). - the respondent has paid the entire amount of service tax along with interest and not contested the same. - the transaction in respect of the services on which the service tax was not paid was also retrieved from the books of accounts of the respondent which shows that the respondent did not try to hide the transaction. - No penalty.
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2016 (7) TMI 1078
Refund - Period of limitation - relevant date - Claim of rebate of service tax paid on specified services used for export of goods under Notification No. 41/2012 ST dated 29.06.2012 - Held that:- the claims submitted by the appellants were scrutinized thoroughly as per the para 3 (g) of Notification No. 41/2012-ST and he has taken the date of let export order issued by the proper officer as the relevant date to come to the conclusion that the refunds are hit by time bar aspect.
Held that:- It is seen that in the definition of "relevant date" u/s 11B , there is a mention that if the goods are exported by sea or air, the date on which the ship or the aircraft in which such goods are loaded leaves India but on the other hand the notification states that the date of export shall be the date on which the LET export order is given. If a limitation period is sought to be imposed in respect of refund claims, it must be introduced by legislation, given the expropriatory consequences of such a limitation period. There is a body of law that essential legislative policy aspects (period of limitation being one such aspect) cannot be formulated or prescribed by subordinate legislation. The parent enactment must clearly impose such obligations. Sub-ordinate legislation cannot prevail or be made in such cases.
The imposition of period of limitation, without statutory amendment, through a notification, therefore, cannot prevail. The Jain Irrigation case is inapplicable to the facts of the present case as what was decided in the said case was as to what was the place of removal which is not the case herein. In view of my above discussions, I am of the view that the appellant is correctly and legally entitled for the refund claim. I therefore, allow the appeal of the appellant with consequential relief, if any, in accordance with law. - Refund allowed - Decided in favor of assessee.
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2016 (7) TMI 1077
Valuation - transport of passengers embarking in India for international journey by air service - service tax was paid only on the basic air fare and without including various charges - Extended period of limitation - Validity of show cause notice - Rule 5(1) of Service Tax (Determination of Value) Rules, 2006, was declared ultra vires by Delhi High Court in the case of Intercontinental Consultants & Technocrats Pvt. Ltd. vs. Union of India [2012 (12) TMI 150 - DELHI HIGH COURT].
Held that:- collection of various elements i.e. fees and taxes levied by various authorities are not to be included in the value. - Decided in favor of assessee on this ground.
However, Fuel surcharge (YQ), insurance surcharge (YQ) and insurance & fuel surcharge (YR) are not the amounts collected to be reimbursed to any agencies. Section 67 of Finance Act, 1994 provides that assessable value for charging service tax is the gross amount charged by the service provider for such service. Therefore, these charges clearly constitute part of the gross receipt for rendition of services. - Decided against the assessee.
Extended period of limitation - Held that:- , it is evident that appellant deliberately dilly dallied in providing the required information in spite of being asked repeatedly as a consequence of which the Revenue could eventually issue the show cause notice based upon whatever information was belatedly provided by the appellant although it did not provide the entire information which was sought. - Decided against the assessee.
Validity of show cause notice - The appellant has strenuously contended that the show cause notice was issued to M/s Japan Airlines while the appellant is M/s Japan International Co. Ltd. and therefore, show cause notice was not issued to the appellant and hence no service tax can be demanded on the basis of show cause notice (leading to the impugned order) because there is no provision in the service tax law similar to Section 290 B of the Income Tax Act. - Held that:- the purpose of show cause notice (resulting in impugned order) has been fully and eminently served in this case and the impugned order has been issued in full and complete compliance of the principles of natural justice. In these circumstances, this contention is too flimsy to be of any consequence whatsoever. - Decided against the assessee.
Decided partly in favor of assessee.
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2016 (7) TMI 1076
Availing cenvat credit for some projects and availing the benefit of abatement under Notification No. 1/2006-ST for some other projects - projects undertaken on turnkey basis - Held that:- it is clear that the appellants can avail Notification No. 1/2006-ST, so long as in respect of such projects, no CENVAT Credit is availed. The appellants are free to avail CENVAT Credit in respect of projects on which Notification No. 1/2006-ST has not been availed. However, the assertion of the appellant that the credit was availed only in respect of project on which Notification No. 1/2006-ST has not availed, needs verification. - Matter remanded back.
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2016 (7) TMI 1036
Levy of penalty - Valuation - service tax liability on TDS amount and reimbursements received towards LPG gas and Milk from the recipient of services - Outdoor Catering Service - reimbursement of expenditure - Held that:- the disputed tax and interest have already been paid (excess tax paid as claimed by the Appellant), the issue to be addressed in this appeal is the imposition of penalty under Section 76, Section 78 of the Finance Act, 1994 and adjustment of excess tax paid by the Appellant. - Held that:- Appellant's case deserves a waiver of penalty under Section 78 of the Finance Act, 1994 in view of Section 80 of the Finance Act, 1994 as it existed during the period of dispute.
As regards the consequential relief on excess payment of tax, we find that no substantiation in the form of documentary evidence has been produced and the claim is being made based on assertions . Accordingly, we are unable to accede to the prayer. Accordingly, appeal is allowed in so far as they relate to imposition of penalties under Section 76 and Section 78 of the Finance Act, 1994. - Decided partly in favor of assessee.
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2016 (7) TMI 1035
Cenvat Credit - Input services - certain documents called "debit notes" issued by the service provider - Held that:- All the details of the service provided is recorded in the debit notes. Since the documents on the basis of which credit has been availed, specify and contain essential details which are required as per the proviso to Rule 9 (2) of Cenvat Credit Rules and there is no observation that service has not been received, there is no occasion to doubt about the eligibility of the documents.
Decided in favor of assessee.
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2016 (7) TMI 1034
Cenvat credit - input services where service tax was paid under reverse charge - Goods Transport Services (GTA) and Business Auxiliary Services (BAS) - service tax liabilities on these two services have been discharged by them by debiting the cenvat credit account and not by cash - Another dispute relating is to credit taken on the basis of two invoices on “input services” and “capital goods” which were also denied on the ground that the invoices are not in the appellants name but in the name of their sister unit. - Held that:- no justification for denial of such credits on the ground that the service tax has been paid by using the debit account as unjustified. Accordingly, the impugned order is set aside with reference to such denial.
Regarding the credit taken on invoices not in the name of appellant, the admitted facts are that the immediately on being pointed out by the Audit, the appellants reversed the credit on both the invoices and reported compliance. They have pleaded bonafide mistake and also on the fact that the sister unit did not avail any credit on the said invoices. - no justification for imposing equal penalty with reference to such reversals.
Decided in favor of assessee.
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2016 (7) TMI 1033
Rectification of mistake - Held that:- As is evident, the CESTAT order dated 13.8.2015 did set aside the impugned order-in-original No. 172-174/GB/2013 dated 29.11.2013 (as a consequence of which the demand, interest and penalties also got set aside) and passed ‘further’ order (for de novo adjudication only in relation to service tax demand, interest and penalty relating to “foreign exchange”). Thus even the order sheet noting dated 13.8.2015 reproduced earlier is not in disharmony with the CESTAT order dated 13.8.2015. - the appellant has not pointed out any error apparent in the CESTAT order dated 13.8.2015 per se. - ROM applications dismissed.
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2016 (7) TMI 1032
Scientific and Technical Consultancy Charges - assistance provided to Joint Venture partner including procurement/ purchase of moulds, machineries, drawings, designs etc. - Held that:- the service rendered by the respondent in this case does not fall within the purview of taxable service of Scientific and Technical Consultancy.” - Demand set aside - Decided in favor of assesse.
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