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Service Tax - Case Laws
Showing 1 to 20 of 222 Records
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2017 (11) TMI 2020 - SC ORDER
Airport services - Interpretation of term "any service provided" - HELD THAT:- Application for exemption from filing certified copy of the impugned order is allowed - Permission to file additional documents is granted.
Issue notice on the application seeking condonation of delay in filing the appeal as also in the appeal.
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2017 (11) TMI 2009 - CESTAT DELHI
Composition scheme for Works Contract - Works Contract Service or not - benefit of abatement as provided under the Notification No. 1/2006-ST dated 01.03.2006 - HELD THAT:- For ascertaining the fact of entitlement to the abatement benefit and consideration of the activities under the works contract service, the Tribunal in M/S S&S TECHNOCRAFTS PVT. LTD., M/S. AHLUWALIA CONSTRUCTION GROUP VERSUS CST, DELHI [2016 (7) TMI 1663 - CESTAT NEW DELHI] has remanded the matter to the original authority for deciding the issues afresh in line with the decision of Tribunal in the case of M/S BHAYANA BUILDERS (P) LTD. & OTHERS VERSUS CST, DELHI & OTHERS. [2013 (9) TMI 294 - CESTAT NEW DELHI (LB)] and the judgment of Hon’ble Supreme Court in the case of COMMISSIONER, CENTRAL EXCISE & CUSTOMS VERSUS M/S LARSEN & TOUBRO LTD. AND OTHERS [2015 (8) TMI 749 - SUPREME COURT].
Therefore, the present matter should also be remanded to the original authority, since period in dispute in this case is subsequent to the period, for which the decision had been rendered by the Tribunal in M/S S&S TECHNOCRAFTS PVT. LTD., M/S. AHLUWALIA CONSTRUCTION GROUP VERSUS CST, DELHI. Further, we also find that the other submissions made by the appellant were not considered by the authorities below in the respective orders.
The matter remanded to the original authorities for Denovo adjudication in line with the above observations - the appeal is allowed by way of remand.
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2017 (11) TMI 1808 - MADRAS HIGH COURT
Garnishee order - recovery of amount of alleged service tax payable by the erstwhile proprietorship concern owned by the late father of the Managing Director of the writ petitioner company - refund of amount collected coercively from the clients of the petitioner company - invocation of provisions of Section 87 of the Finance Act, 1994 - issuance of notice u/s 73 of FA.
Held that:- The words ‘person chargeable’ and the words ‘the person to whom such tax refund has erroneously been made’, means the actual assessee, on whom, after show cause notice, if assessment is made, would be the person liable to pay the chargeable amount of service tax. So, notice seeking to show cause should be issued under Section 73 only to the person chargeable. Admittedly, M/s. Service Care Chennai is a proprietorship concern of a sole proprietor who is no more. So if at all any show cause notice to be issued under Section 73 of the Act, the notice must be given only to the person chargeable i.e., M/s. Service Case, Chennai and not to anyone.
Here in the case in hand, it is the specific assertion of the writ Court after getting necessary instructions from the Standing Counsel for the revenue that, no assessment order had been passed against the assessee i.e., M/s. Service care, which was the proprietorship concern. There was no facilitating answer from the Revenue before the writ Court as to whether the clients of the erstwhile proprietorship concern including the one L & T Valves Ltd. against whom the garnishee order had been issued, owe to pay any money to the proprietorship concern - When these two issues were made clear before the writ Court that there was no assessment order on the erstwhile proprietorship concern and there was no observation that there were clients of the proprietorship concern who had conducted their business subsequently with the petitioner company, of course with separate agreement in this regard, who had due of service tax payable to the erstwhile proprietorship concern, the provisions of Section 73(A) cannot be invoked against the petitioner company.
Recovery of amount due to the Central Government as contemplated under Section 87 of the Act - Held that:- Here in the case in hand, there is no assessment and no determination of tax liability about the erstwhile proprietorship concern namely, M/s. Service Care, Chennai in the manner known to law. When that being so, the very invocation of the Provisions of Section 87 of the Act is absolutely unjustifiable.
Thus, the attempt made by the Revenue to issue garnishee orders for recovering the amount of alleged service tax payable by the erstwhile proprietorship concern owned by the late father of the Managing Director of the writ petitioner company, was bad in law, and for the said action absolutely there is no scope for the Revenue under the relevant provisions of the Finance Act, 1994 - Merely because the Managing Director of the present writ petitioner, who is none other than the daughter of the late proprietorship concern, who is the service tax assesee, was in due according to the Revenue, had knowledge about the impugned dues payable by the erstwhile proprietorship concern as on 31-3-2010, it cannot be presumed that the said person/writ petitioner company has inherited the assets and liabilities of the said proprietorship concern. Therefore, the Revenue, since has proceeded on a wrong premises, that too without making any assessment in the manner known to law against the said proprietorship concern, we have no hesitation to hold that, the said move on the side of the Revenue cannot be appreciated or accepted.
Appeal dismissed - decided against Revenue.
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2017 (11) TMI 1803 - CESTAT KOLKATA
CENVAT credit - input services - inward transportation of new motor cycles from the plant of the showroom and not to the Authorized Service Centre - Held that:- Input service means any service used by a provider of output service for providing an output service - The transportation of new motor cycles to the showroom is not related to carrying out any service or repair of vehicles manufactured by the manufacturer. Hence, the appellant is not eligible for availing the Cenvat credit - credit cannot be allowed - appeal dismissed - decided against appellant.
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2017 (11) TMI 1800 - CESTAT AHMEDABAD
Refund of service tax paid - service tax paid on the said food stuff - N/N. 25/2012, dated 20-6-2012 amended by the N/N. 3/2013, dated 1-3-2013 - scope of SCN - Held hat:- In this case, no show cause notice was issued to the respondent and initially deficiency memo was issued to the respondent to produce certain documents in support of their refund claim and it has not been agitated by the Revenue. No show cause notice was issued to allege that the cattle feed is not food stuff.
While filing this appeal Revenue has taken a new ground which are not alleged earlier therefore, the Revenue cannot go raise the said issue at this stage to file this appeal - appeal dismissed - decided against Revenue.
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2017 (11) TMI 1799 - CESTAT KOLKATA
Classification of services - C&F Agent service or not - transport the coal from the colliery to their factory premises - Held that:- It is evident that the appellants have collected the coal from the colliery and directly delivered to the factory premises without any storage or warehousing premises. So the same activity cannot be considered as C & F Agent service - demand set aside - appeal dismissed - decided against Revenue.
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2017 (11) TMI 1787 - SETTLEMENT COMMISSION, CUSTOMS, CENTRAL EXCISE AND SERVICE TAX, CHENNAI
Maintainability of Settlement commission application - applicability of bar under Section 32-O of the Central Excise Act, 1944 - time bar - Non-payment of service tax - the applicant had been charging and collecting service tax but not remitting the same to the Government - applicant is engaged in activities in the nature of Hotel Industry under the brand name “The Chancery Pavillion” - applicant also engaged in providing Restaurant Service, accommodation services, banquet halls, etc. - non-payment of service tax and non-filing of returns for the period subsequent to September 2012 - demand of service tax under Proviso to Section 73(1) of the Finance Act, 1994 along with appropriate interest u/s 75 of the Act, ibid and penalty u/s 76, 77 and 78 of FA - Held that:- Persual of the provisions of section 32-O clearly indicate that any subsequent application by an applicant is barred if any penalty has been imposed on them on account of concealment of duty/tax liability from the jurisdictional officers.
The Bench observes that in the earlier show cause notice, penalty was proposed under Section 78 of the Finance Act, 1994 on the applicant on grounds of suppression of facts, with an intent to evade payment of Service Tax and accordingly vide Final Order No. 46/2014-S.T., dated 20-10-2014, a penalty of ₹ 15,00,000/- was imposed on the applicant under the provisions invoked in the Notice - the amendment by insertion of explanation to Section 32-O is to emphasize that the concealment of particulars of duty liability related to concealment made from the Officer of Central Excise and not from the Settlement Commission. However, in the case of the applicant the earlier order was passed on 21-10-2014 after the amendment of Section 32-O was made clarifying that once penalty is imposed on the applicant for any concealment made from the Central Excise Officer, then the bar of subsequent application under Section 32-O would apply. The Bench notes that in respect of the application relating to the Final Order No. 46/2014-S.T., dated 21-10-2014, the SCN has been issued invoking suppression of facts on the part of the applicant. Accordingly, a penalty of ₹ 15 lakhs was imposed on the applicant under the provisions invoked in the Notice including Section 78 of the Finance Act which tantamounts to imposition of penalty for concealment of Service tax liability before the jurisdictional Officer.
The Bench also finds that the applicant has accepted their Service tax liability only for a part of the period (April 2013 to Aug 2014) covered by the show cause notice and claimed that the balance demand pertaining to the previous period Oct 2012 to March 2013 is time barred. The Jurisdictional Commissioner has rightly pointed out that the show cause notice has been issued well within the due date of 25-10-2014 viz. on 10-10-2014 (within 18 months from the relevant date viz. 25-4-2013), being the due date for filing ST3 Return for the period (October 2012-March 2013) - the Bench holds that the applicant has not made a true and full disclosure of their liability before the Commission which is a pre-requisite for entertaining the application. In any case, as observed by the Bench supra, the application is not maintainable as it is hit by the bar imposed under Section 32-O of the Central Excise Act, 1944 and is liable for rejection.
The Bench, accordingly, holds that the application filed by the applicant, is clearly hit by the bar in terms of express provisions of Section 32-O of the Central Excise Act, 1944 as well as non-maintainable in the absence of true and full disclosure of their additional Service Tax liability as required under Section 32E(1) of the Central Excise Act, 1944 as made applicable to Service Tax matters under Section 83 of the Finance Act, 1994.
The application filed by M/s. Elixir Enterprises & Hotels Pvt. Limited, Bangalore-560025 is rejected as non-maintainable.
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2017 (11) TMI 1777 - SETTLEMENT COMMISSION, CUSTOMS, CENTRAL EXCISE AND SERVICE TAX, CHENNAI
Non-payment of service tax - Mining and Civil Construction Services - April, 2013 to March, 2015 - Idle Charges - Declared Services in terms of 66E of the Act - Point of Taxation Rules, 2011 - Held that:- The applicant paid ₹ 4,16,69,933/- (Rs. 3,39,16,856/- through Cenvat credit and ₹ 77,53,077/- through cash) before issuance of show cause notice and the Service Tax of ₹ 61,64,541/- demanded on “Idle Charges” subsequently. The applicant also paid ₹ 10,64,578/- towards interest for the delayed payment of Service Tax.
Non-receipt of consideration could not be a ground for non-payment of Service Tax after the advent of the system of payment of Service Tax on “Accrual Basis” in terms of Point of Taxation Rules, 2011. Hence, the applicant is liable to pay Service Tax of ₹ 61,64,541/- on “Idle Charges” with appropriate interest - However, as the jurisdictional Commissioner, in his report dated 17-10-2017, had reiterated his earlier stand with regard to taxability of “Idle Charges”, which had already been addressed by the applicant during the personal hearing, it was not felt necessary to provide the copy of Commissioner’s report dated 17-10-2017 since no new point has been put forth by the Commissioner. Further, as regards eligibility to Cenvat credit for adjustment towards the demanded amount, the Commissioner had conceded to the point of the applicant and consequently, the interest liability is lessened, which is discussed separately in this order. Therefore, the total Service Tax liability is settled at ₹ 4,78,34,474/-, as demanded in the show cause notice. The applicant having paid this amount, no further payment of Service Tax is required.
Liability of Interest - Held that:- The department, having accepted the contention of the applicant after verification, that the applicant is entitled to set off his liability of ₹ 3,39,16,856/- from out of his Cenvat Credit Account, the consequent interest liability of ₹ 52,89,585/- on this score is extinguished - Further, the applicant, in his submission on 12-9-2017, had also contended that there was an error in computation of interest liability in the department’s working with reference to the number of days for 30% slab rate - Therefore, the applicant is required to work out the interest liability afresh in line with the above findings and to the satisfaction of the jurisdictional Commissioner. The sum of ₹ 10,64,578/- already paid by the applicant towards interest shall be adjusted against the total interest liability.
Penalty - Held that:- This is a case of non-payment of Service Tax on Mining and Civil Construction Services. The applicant contested the demand of Service Tax on “Idle Charges” alone and accepted the remaining liability. However, the applicant had paid the entire demanded amount of ₹ 4,78,34,474/- including Service Tax on ‘Idle Charges’ - Financial constraints could not be accepted as a reason for non-payment of fiscal liabilities and non-filing of returns within the prescribed time. Hence, the applicant is liable to penalties as proposed in the show cause notice - The eligibility of Cenvat credit to the applicant for adjustment towards the admitted liability had also been accepted by the jurisdictional Commissioner and consequently, the interest liability is also reduced to the extent of Cenvat credit - the Bench is inclined to grant partial relief to the applicant with regard to penalty.
The Bench considers it a fit case for grant of immunity from prosecution to the applicant.
The immunities are granted in terms of Section 32K of the Central Excise Act, 1944, as made applicable to Service Tax matters vide Section 83 of the Finance Act, 1994. If the applicant fails to pay the sum ordered as above, the immunities granted shall stand withdrawn.
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2017 (11) TMI 1774 - CESTAT KOLKATA
Business Auxiliary Services - appellant providing service on behalf of the principal - liability of service tax - Held that:- There is nothing on record that this service facilities, sale of C.Ds provided by the eBIZ is an educational service. As per brochure education material, it is clearly mentioned that eBIZ is providing education material. When it is so, it can be concluded that the appellants are providing business auxiliary services and service tax, if any, can be charged from the principal - appeal allowed - decided in favor of appellant.
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2017 (11) TMI 1733 - CESTAT BANGALORE
Penalty u/s 76 and 78 of FA - Contravention of section 73 of the Finance Act, 1994 - it is alleged that assessee had not disclosed the receipt of services to the department and did not pay the service tax on these services until pointed out by the audit team - Held that:- The appellant has paid the service tax liability immediately on pointing out the same by the audit and the appellant has paid the service tax along with interest prior to the issue of show cause notice and therefore the case of the appellant is covered under section 73(3) of Finance Act, 1994 - the revenue has not brought any evidence to show that there was suppression on the part of the appellant - penalty set aside - appeal allowed - decided in favor of appellant.
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2017 (11) TMI 1726 - CESTAT AHMEDABAD
Manpower Recruitment Agency service - demand of 75% of Service Tax - N/N. 30/2012-ST dt 20.6.2012 - in one case demand was paid on being pointed out - in another case, appellant did not pay service tax as supplier paid 100% of tax, and appellant claims that no demand is sustainable against the appellant - Held that:- As per N/N. 30/2012-ST dt 20.6.2012 there is no dispute that the appellant was required to pay 75% of the Service Tax on ‘Manpower Recruitment Agency Service’ availed. For the initial period, on pointing out by the Revenue the appellant immediately paid Service Tax. In that circumstance, the said demand is not sustainable against the appellant.
For the another invoice on which the appellant did not pay Service Tax but the service provider paid the 100% of Service Tax. In that circumstance, the appellant is not required to pay 75% of the Service Tax in terms of Notification No. 30/2012-ST dt 20.6.2012 - in such case, if the payment has made by the appellant, the same shall become double taxation against the appellant which is not permissible in the law.
Demand set aside - appeal allowed - decided in favor of appellant.
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2017 (11) TMI 1718 - CHHATTISGARH HIGH COURT
Territorial jurisdiction of the Commissioner of the Service Tax, Raipur - Did CESTAT act otherwise than in accordance with law by not considering the issue of territorial jurisdiction of the Commissioner, Service Tax, Raipur to pass the order which was the impugned before the Tribunal? - Held that:- Held that:- he impugned order of CESTAT is vitiated for non-consideration of the question of the territorial jurisdiction of the Commissioner, Service Tax, Raipur, as specifically raised in the appeal before CESTAT. This is more particularly because such issue of territorial jurisdiction was raised before the authority of the first instance at the earliest opportunity. The collateral issue based on the doctrine of prejudice has also to be answered in favour of the appellant since non-consideration of the territorial jurisdiction of the Commission at Raipur, in spite of such plea being specifically raised, may foreclose that issue qua the appellant which, it is submitted, has operations elsewhere as well.
Appeal allowed.
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2017 (11) TMI 1712 - PUNJAB AND HARYANA HIGH COURT
Condonation of delay in filing appeal - appellant filed an appeal before the Commissioner (Appeals) on 30.06.2014 after a delay of more than three months - Section 85(3A) of Finance Act, 1994 - Renting of immovable property service - non-payment of service tax - Held that:- The issue with regard to the condonation of delay beyond the period specified in the statute in filing appeal has already been decided by a Full Bench of this Court in State of Haryana Vs. Hindustan Machine Tools Ltd., [2015 (6) TMI 498 - PUNJAB & HARYANA HIGH COURT], wherein it was held that wherever the extent of condonable period is specifically prescribed by a statute, it would not be appropriate even under Articles 226/227 of the Constitution of India to entertain the writ petition so as to breach the express provision in the statute and act contrary to the mandate of the legislature.
Further in Patel Brothers Vs. State of Assam and others, [2017 (1) TMI 330 - SUPREME COURT], it has been held by the Apex Court that condonation of delay by invoking Section 5 of the Limitation Act, 1963 when such delay is beyond the prescribed period, is not permissible.
Appeal dismissed - decided against appellant.
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2017 (11) TMI 1704 - SC ORDER
Demand of service tax - Consulting Engineer Service - Invocation of extended period of limitation - Held that:- There is no cogent reason to entertain the appeal. The judgment impugned does not warrant any interference - appeal dismissed on the ground of delay as well as on merits.
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2017 (11) TMI 1693 - CESTAT HYDERABAD
Penalty u/s 78 - non-discharge of service tax liability on the GTA services received during the period February 2006 to March 2010 - Held that:- It is on record that appellants had not discharged the service tax liability; as also after the orders have been passed, the entire tax liability has been discharged on 10.03.2014 i.e. after almost 1 years of passing of the impugned order - penalty cannot be set aside - appeal dismissed - decided against appellant.
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2017 (11) TMI 1687 - CESTAT NEW DELHI
Rectification of mistake - error apparent from face of records - exclusion of certain portion of value on the ground that these are attributable to reimbursible expenditure - Held that:- The Tribunal cannot take up exercise on re-appreciating the evidences and to embark on an act of reviewing the decision under the guise of rectification of mistake.
An error apparent on the face of the record means an error which strikes on the mere looking and does not need long drawn-out process of reasoning on points where there may be conceivably be two opinions. Such effort should not require anv extraneous matter to show its incorrectness.
There is no error apparent from the record calling for rectification - ROM application dismissed.
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2017 (11) TMI 1653 - CESTAT DELHI
Business Auxiliary Service - consideration received/retained while selling ERC/SIM Cards of Reliance Telecommunication - Held that:- When telecom operators discharged the service tax on the whole MRP value of ERCs/SIM Cards, there could be no further service tax liability on the persons, who are dealing/selling the said ERCs/SIM cards to the public - reliance placed in the case of Goyal Automobiles [2016 (2) TMI 725 - CESTAT NEW DELHI] - appeal allowed - decided in favor of appellant.
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2017 (11) TMI 1646 - CESTAT MUMBAI
CENVAT credit - rent-a-cab service - insurance service received to insure the life of employees and their family member - Held that: - In respect of rent-a-cab services availed, whether the vehicle was capital goods was not proved by Revenue. It does not appeal to common sense as to how a service recipient having no scope to know whether the motor vehicle was capital goods or not shall face adversity even though he has paid tax on the service of rent-a-cab availed - credit allowed.
Insurance service received to insure the life of employees and their family member - Held that: - taking into consideration the appellant was a manufacturer, its employees including their family members are insured, there should not be denial of cenvat credit since insuring workers has integral connection with manufacture - So also health insurance being requisite of labour welfare legislation, denial of cenvat credit of service tax paid on insurance service availed for the employees welfare would be unreasonable - credit allowed.
Appeal allowed - decided in favor of appellant.
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2017 (11) TMI 1630 - MADRAS HIGH COURT
Service Tax on commission received - Contract for Maintenance and Handling Agreement - Policy Circular dated 20.04.2016 - Held that: - Writ Petitions are partly allowed and the impugned communications dated 12.10.2016 26.10.2016 are set aside with a direction to the petitioners to pay service tax as demanded by the 3rd respondent and after payment, produce the invoice to the 2nd respondent for reimbursement, which shall be considered by the 2nd respondent strictly in accordance with Policy Circular No.240-04/2016 dated 20.04.2016 - petition allowed in part.
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2017 (11) TMI 1577 - CESTAT HYDERABAD
Maintainability of appeal - VCES - whether the appeal relies upon before the Tribunal against rejection of VCES declaration 2013 or otherwise? - Held that: - Hon'ble High Court of Madras in the case of Narasimha Mills Pvt. Ltd. Vs. Commissioner of Central Excise (Appeals), Coimbatore [2015(06)LCX 0020 has settled the law and held that appeal provision under section 85 & 86 of Finance Act, 1994 will apply to the proceedings arising out of VCES declaration - the rejection of VCES is contestable before Tribunal, however the rejection of VCES is appropriate - appeal dismissed - decided against appellant.
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