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Service Tax - Case Laws
Showing 61 to 80 of 111 Records
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2016 (7) TMI 657
Business Auxiliary Services (BAS) - Activity of data processing of electricity consumers for Andhra Pradesh Central Power Distribution Company (APCPDCL) - Extended period of limitation - Held that:- The appellant was engaged in processing electricity consumer's data for APCPDCL. The job was to maintain computerized data base of APCPDCL, on computers and furnish the required output data on magnetic tapes/file transfers/hard copies. The appellant defended the show cause notice contending that the services would fall under Information Technology Service, while department is of the view that such services fall under BAS. As it is seen that the copy of the Order-in-Original was not served upon the appellant, as a sequitur, we are of the considered view that the matter is deem fit to be remanded to the original authority for denovo adjudication. The impugned order is set aside and case is remanded to the original authority for denovo adjudication after giving reasonable opportunity to the appellant for personal hearing. - Decided in favor of assessee.
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2016 (7) TMI 639
Construction services - structure predominantly for use as an educational institution or clinical establishments - claim of exemption under Notification No.25/2001 ST dated 20/6/2012 - principles of natural justice - Held that:- Materials relied upon by the petitioner indicate that the petitioner has raised certain valid contentions especially in regard to the penalty that had been imposed under Section 76 as well as under Section 78. That apart, he claims benefit under a notification by which according to him, the work for two specified years are to be exempted. The materials placed on record would already indicate that the petitioner was not given an opportunity for hearing. Under normal circumstances, when a request has been made, the authorities are bound to provide a haring to ventilate his grievance. When such an opportunity has not been given, it amounts to violation of the principles of natural justice and therefore I am of the view that Ext.P4 is liable to be set aside on the ground of violation of the principles of natural justice. Hence a fresh opportunity is to be granted to the petitioner to defend the proceedings pursuant to the show cause notice issued against him. - Decided in favor of petitioner.
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2016 (7) TMI 638
Demand of interest and penalty - VCES, 2013 - Credit of payment made before introduction of scheme was not given - Service Tax Voluntary Compliance Encouragement Scheme (VCES) - Held that:- While the tax dues declared by the petitioner was for a sum of ₹ 3,77,150/-, they paid 50% thereof i.e. Rs,1,88,575/- on 31.12.2013 and an additional sum of ₹ 1,66,260/- on 28.06.2014 prior to the cut off date prescribed under the scheme i.e 30.06.2014. The aforesaid payments were made after introduction of the scheme and prior to the cut off date. The petitioner had paid only ₹ 22,135/- prior to the introduction of the scheme. The clarification issued by the Central Board of Excise and Customs would have enabled the respondents to levy interest and impose penalty only for the amount paid by the petitioner towards tax dues prior to enactment of the scheme. Their power to levy interest and impose penalty was, therefore, only on ₹ 22,135/- paid by the petitioner during November 2007 to March 2008, and not for the remaining amount paid by them after the scheme was introduced.
The impugned letter dated 03.12.2015, to the extent the petitioner was called upon to pay ₹ 1,99,183/-, is set aside. It is made clear that this order shall not preclude the respondents from initiating action to levy interest and impose penalty on the amount paid by the petitioner during November 2007 to March 2008 (i.e for ₹ 22,135/-) in accordance with law. - Decided partly in favor of petitioner.
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2016 (7) TMI 637
Levy of penalty u/s 77 & 78 of the Finance Act, 1994 - validity of invocation of Section 80 by learned Commissioner (Appeals) for setting aside penalties while confirming the demand of service tax on import of services under reverse charge - Held that:- It is only with introduction of Section 66A of the Finance Act, 1994 there was clarity and the judicial decisions as stated supra brought in clarity only from 2009 onwards. It cannot therefore be stated that there was a malafide intention on the Respondents part. The contention of the respondent that there was no malafide as it is a revenue-neutral situation should not be lost sight of. This is a case where the tax paid by the Respondent is eligible for credit for themselves. It is, therefore, very clear that when the situation is revenue-neutral, the aspect of malafide fails. - No penalty - Decided against the revenue.
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2016 (7) TMI 602
Recovery proceedings - Failure to deposit the amount of service tax delcared in the VCES 2013 - Petitioner requested for extending the period of the Scheme. - Held that:- petitioner is not entitled for any relief. - The Scheme is statutory in nature and unless the provisions in the statute are complied within the time specified, it shall always be open for the respondent authorities to take necessary steps to collect the interest as well as penalty in accordance with law.
As far as the prohibitory order is concerned, even if quantification of the interest and penalty, if any, is pending, nothing prevents the department from initiating appropriate action by way of garnishee proceedings and the same also cannot be challenged. - Decided against the petitioner.
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2016 (7) TMI 601
Refund of cenvat credit / input tax on export of goods - Refund claim on THC charges, bills of lading charges, origin haulage charges, repo charges rejected on the grounds that same are not covered under Port Services as the service providers are registered under different category and proof of deposition of tax under port services not produced. - GTA services. - CHA Services - Cleaning activit - courier service - Held that:- Regarding rejection of refund of service tax paid on courier services and cleaning activity, the Ld. Consultant is not pressing this point. We find that consultant is right in claiming that the issues mentioned at Sr. No. (i) (ii), (iii) & (iv) are indeed covered in assessees favour by the aforementioned CESTAT judgments. Following the precedents, we partly allow the appeal to the extent that the refund rejected on grounds mentioned at serial no. (i), (ii), (iii) and (iv) above is allowed but refund relating to courier service and cleaning service is disallowed.
Decided partly in favor of assessee.
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2016 (7) TMI 600
Waiver of pre-deposit - seeking modification in the earlier order - construction of residential units. - The period involved is 2007-08 to 2011-12. The moot contention of the appellant is that they have been regularly filing return and paying tax under CRCS. Only because the department has classified it as works contract service, the present demand for differential duty has been made. It is also to be noted that they are not given the benefit of abatement even after remand of the case by the Tribunal. We are convinced that there is an error apparent on the face of record as the Tribunal in the said order has not taken into consideration the claim of abatement made by appellant and also the fact that they have been paying tax without fail under the category CRCS. - stay order modified - the amount of ₹ 1 crore paid by the appellant would suffice pre-deposit for the purpose of Section 35 F and we hereby grant waiver of the balance. - Decided partly in favor of applicant.
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2016 (7) TMI 599
Erection Commissioning or Installation Services (ECIS) - Activity of supply of material, erection and installation of sub-stations, related lines, installation of transformers and other electrical equipments etc. - Held that:- the demand raised under ECIS is unsustainable and requires to be set aside which we hereby do.
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2016 (7) TMI 598
Refund of cenvat credit - eligible input services - For exported of services, they consumed various services in India - It was explained by the counsel that each of the above services are very much essential for providing the output services - Held that:- appellant is eligible for refund of input service credit of all the services listed in the table above. The rejection of refund is unjustified. - Decided in favor of assessee.
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2016 (7) TMI 597
Rejection of rectification application u/s 74 - rectification in the quantification of the Service Tax demanded - it was contended that alternatively they have given their option under Rule 3(3) of Works Contract (Composition scheme for payment of service tax) Rules, 2007 and the said option was rejected without relying on the statutory provisions. - Held that:- A bare perusal of the petition for rectification would reveal that the petitioner seeks for re-arguing the matter before the authority or question the interpretation given by the authority for not granting the relief sought for. This would not fall within the scope of the power to be exercised under Section 74 of the Finance Act. Therefore, the authority was justified in refusing to exercise such power. - Writ petition dismissed - Decided against the petitioner.
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2016 (7) TMI 560
Failure to deposit first installment of 50% under the VCES, 2013 (Voluntary Compliance Encouragement Scheme, 2013) - the immunity provided under section 108(1) of the Finance Act, 2013 was withdrawn, as this petitioner has not deposited 50% of the tax dues so declared under Section 107(1) and submitted the proof of such payment to the designated authority. - Held that:- so far as the payment of first instalment is concerned, which was minimum 50% of the tax dues so declared was to be paid on or before 31st December, 2013 and there is no provision under the VCES, 2013 for relaxation in the payment of first instalment. So far as second instalment is concerned, it was to be paid on or before 30th June, 2014. However, there is slight leniency in the payment of second instalment, viz. if the second instalment is not paid before 30th June, 2014, the declarant can make the payment on or before 31st December, 2014, but, with interest. Thus, this petitioner-declarant has committed a breach of section 107(3) of the VCES, 2013 in making the payment of first instalment and hence, he is not entitled to get the benefits provided under this scheme.
Application was rightly rejected - Writ petition dismissed. - Decided against the assessee.
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2016 (7) TMI 559
Intellectual Property Service (IPR) - IPRs covered under Indian Law in force - import of services - taxability - extended period of limitation - appellants entered into License Agreement with foreign companies and obtained rights to use the technology for manufacture in consideration of which they had paid technical know-how fees and royalty charges - period from 01.01.2006 to 31.12.2006 - The appellants state that these foreign companies transferred licensed use of their technical information, know-how and trade secrets which are not registered under any Indian law for time being in force. - Scope of Section 65(55a) of Finance Act, 1994.
Held that:- the subject matter(s) of transfer of various documents/drawings, designs, softwares, catalogues, technical assistance/training documents/symbol numbering system etc., done under respective agreements which are on the record of these proceedings are not covered under the definition of the subject matter(s) of transfer of various documents/drawings, designs, softwares, catalogues, technical assistance/training documents/symbol numbering system etc., done under respective agreements which are on the record of these proceedings are not covered under the definition of 'Intellectual Property Right' as given in Section 65(55a) of Finance Act 1994 and consequently subject transfers of 'right to intellectual property', if any, covered by those transactions do not come within the definition of 'Intellectual Property Service' given in Section 65(55b) of the Finance Act, 1994 and the service(s) if any, provided by the foreign companies by way of transfer of subject matter(s) under respective agreements to the appellants cannot be covered under the taxable service of 'Intellectual Property Service' as defined under Section 65(105)(zzr) of the Finance Act, 1994 'Intellectual Property Right' as given in Section 65(55a) of Finance Act 1994 and consequently subject transfers of 'right to intellectual property', if any, covered by those transactions do not come within the definition of 'Intellectual Property Service' given in Section 65(55b) of the Finance Act, 1994 and the service(s) if any, provided by the foreign companies by way of transfer of subject matter(s) under respective agreements to the appellants cannot be covered under the taxable service of 'Intellectual Property Service' as defined under Section 65(105)(zzr) of the Finance Act, 1994.
Demand set aside - Decided iin favor of assessee.
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2016 (7) TMI 558
Cenvat Credit - Export of services by the 100% EOU - eligible input services - Duty paying documents - Held that:- Major portion of the refund is denied for the reason that the invoice is issued to the unregistered premises of the appellant. As per Rule 4A of Service Tax Rules, 1994, there is no requirement that the premises of the service recipient has to be registered. Therefore, the denial of refund on this ground is unjustified. The invoice with regard to Erection, Commissioner and Installation services shows that the woks done is minor work of cleaning and remodeling chairs. The service provider has paid service tax under the category of Erection, Commissioner and Installation services. All the other services detailed above and shown in the table are included in the definition of input service. They have been used by the appellant for providing output service as explained by the learned consultant. - Refund allowed - Decided in favor of assessee.
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2016 (7) TMI 557
Refund claim of accumulated cenvat credit - export of services - admissibility of input service being services utilised at the unregistered premises and also some other services namely chartered accountant service, carpet cleaning service, home plant service, interior decorator service, et cetera. - Held that:- in view of the Registration granted – centralised, including the premises at Mumbai, it is conclusive proof that the appellant is in legal occupation of the said premises, have rendered output services from such premises and have maintained centralised accounting at the Noida Office. I also find that on opening of branch at Mumbai by appellant, an intimation by the director of STPI was given to revenue. I also find that output service have been rendered by Mumbai office, for which bill(s) have been raised. Thus I hold that the appellant is entitled to Cenvat Credit in respect of input services received at the premises other than the premises at Noida.
Further, other input services save and except, input services received at guest house, and the amount of ₹ 62/- for which no proper explanation was given, credit allowed. - Decided substantially in favor of assessee.
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2016 (7) TMI 502
Taxability of photography service provided for carrying works of preparation of Elector’s Photo Identity Card (EPIC) i.e. Matdan Pahchan Patra. - Held that:- the work done by the appellant in respect of preparation of EPIC under agreement with the Governor or the State functionaries, was a sovereign activity of the State/Union and accordingly, the said activity is held not taxable. Similar views have been expressed by the CBEC in their Circular dated 18.12.2006 - Demand set aside - Decided in favor of assessee.
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2016 (7) TMI 501
Valuation - Claim of abatement of 67% availed without including the value of the material supplied free of cost by their customers in the gross amount charged. - Commercial or Industrial Construction Service - Held that:- Following the aforesaid ratio of the Larger Bench of the Tribunal [2013 (9) TMI 294 - CESTAT NEW DELHI (LB)], the impugned order passed by the learned Commissioner confirming the demand of Service Tax by including the value of free issue material in gross taxable value and imposition of penalty cannot be sustained.
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2016 (7) TMI 500
Restoration of appeal - ex-parte order allowing appeal in favour of Revenue - the concerned person, Mr. R.S. Dwivedi, was suffering from cancer and was repeatedly going to Hospital during that period. - Held that:- After going through the records and with the assistance of the Id. A.R. for the Revenue, we find that the Respondent Assessee had also filed Cross Objection bearing Nos. ST/Cross/39/2010 & ST/Cross/38/2010, which were not listed and hence, the same were not considered at the time of hearing and disposal of Appeals. Thus, there is a miscarriage of justice. - Appeal restored.
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2016 (7) TMI 473
Tour operator services - giving on hire the vehicle - Adjudicating while confirmed the demand observed that, they are not mere owners of contract carriages let on hire to customers. The staff of the carriage including the driver is operating the trips and tours. The carriages are used for marriage parties, excursions and group trips. It is not a mere instance of hiring of contract carriage. - The main contention urged by the petitioners is based on Ext.P2 judgment of this Court. Ext.P2 judgment will not render any assistance to the petitioners. It was only an observation and cannot bind the department to form an opinion that merely for the reason that the vehicles are given for hire, service tax cannot be imposed.
Held that:- When the petitioners were relegated to the appropriate authority and the right to contest the validity of the provisions were left open, it has to be assumed that there is no finality attached to the observation made by the learned Single Judge. Therefore I do not think that the judgment in Ext.P2 had in any way curtailed the right of the assessing authority to consider on facts as to whether the petitioners are tour operators or not. - Further, the authority had come to a finding that petitioners are not mere hirers. Petitioners are not persons who merely hire the vehicle, whereas it amounts to operation of the tour itself.
That apart, the following words in the statute “any person engaged in the business of operating tours in a tourist vehicle covered by a permit” is liable to be termed as a tour operator. The finding by the assessing authority is that “the conditions printed on the specimen order form supplied to customers clearly show that the trips are in fact operated by the assessee and is not just a hiring of contract carriage”. It is also found that the staff of the carriage including the driver is operating the trips and tours. - All relevant facts had been considered and the authorities had come to a proper decision which cannot be termed as illegal or perverse - Decided against the petitioner.
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2016 (7) TMI 472
Waiver of pre-deposit - tribunal directed the assessee to pre-deposit 2 crores - maintainability of writ petition - alternative appellate remedy - Held that:- To the extent that the Division Bench of this Court interpreted in Metal Weld Electrodes, the expression 'any order' to mean all orders and held that therefore, appeals are maintainable against these orders, we have no quarrel. But, the opinion expressed by the Division Bench in Metal Weld Electrodes [2013 (11) TMI 240 - MADRAS HIGH COURT] in paragraph 81 of its decision that writ petitions are not maintainable, cannot be accepted by us for two reasons.
The first reason is that in the second part of paragraph 38 of Rajkumar Shivhare [2010 (4) TMI 432 - SUPREME COURT], the Supreme Court has carved out certain exceptional circumstances, in which, the writ petitions are maintainable. Therefore, the reading of Rajkumar Shivhare by the Division Bench in Metal Weld Electrodes may not be fully correct. The second reason as to why we cannot agree with the opinion expressed by the Division Bench in Metal Weld Electrodes (paragraph 81) is that the question referred to the Bench has already been answered in paragraph 80. What is stated in paragraph 81, is an opinion, which appears to have been recorded as a corollary to what was recorded in paragraph 80. But, whatever is the answer provided in paragraph 80 to the reference alone can be taken as having arisen directly for consideration before the Division Bench. It is too well settled that a judgment is a precedent for what it lays down and not what follows out of it.
Therefore, we are of the considered view that the answer given in paragraph 80 of its decision by the Division Bench in Metal Weld Electrodes, is perfectly correct. But, at the same time, in exceptional circumstances carved out in the second part of paragraph 38 of the decision of the Supreme Court in Rajkumar Shivhare, the writ petitions are also maintainable.
However, such writ petitions cannot be posted before Single Judges. They have to be posted only before the Division Benches dealing with tax cases. This will avoid the assessees' attempts to have two remedies before this Court as against an order, against which, even an appeal would normally lie before a Division Bench.
The grievance of the writ petitioner is that without considering any of the issues raised, the Tribunal has passed a conditional order for a predeposit. According to the writ petitioner, they are executing a work for Government Departments as well as engaged in constructing houses to tsunami victims and that all of them are completely exempt. - This aspect, though raised by the writ petitioner, has not at all been considered by the Tribunal while deciding the application for waiver. - Matter remanded back to tribunal.
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2016 (7) TMI 471
Levy of penalty u/s 78 - waiver u/s 80 - admitted liability of service tax as paid with interest invoking extended period of limitation - In the instant case, entire services have been provided outside India and not received in India. So the recipient was under the impression that there were no liabilities to pay - Held that:- When the department officials are aware of the activities of the Respondent herein, the allegation of suppression is baseless. - department has failed to make out a case justifying the imposition of penalty under section 78. Apart from the above rulings, factually also there is no suppression of facts on the part of the Respondent herein. - Penalyt was rightly waived by the Commissioner (Appeal) - Decided against the revenue.
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