|
Advanced Search Options
Service Tax - Case Laws
Showing 101 to 120 of 222 Records
-
2017 (11) TMI 836 - GUJARAT HIGH COURT
Maintainability of petition - condonation of delay in filing appeal - Held that: - It is true that this Court has under rare and exceptional circumstances entertained writ petitions directly against the orders of the adjudicating authorities where by virtue of the nonextendable period of limitation prescribed by the statute has expired. While doing so, the Court has always been careful of not exercising such powers in a routine manner, virtually providing for an alternative parallel forum and thereby diluting the legislative intent of not allowing appeals to be presented after indefinite period of time. Some of the self imposed restrictions recognized are that the delay should otherwise be satisfactorily explained and that the litigant would suffer gross injustice if the remedy is completely shut out.
In the present case, the adjudicating authority passed the order on 08.03.2016 which would have been received by the petitioner shortly thereafter. For over one and half years, no steps were taken by the petitioner to challenge it. The present petition came to be filed on or around 11.09.2017. The delay is gross. Against the maximum period of limitation of three months, even considering additional one month upto which the Commissioner can condone the delay, the present petitioner moved its first challenge almost a year and a half later. No grounds are indicated to condone such delay - Delay, even otherwise, is gross and inordinate.
Petition dismissed.
-
2017 (11) TMI 835 - CESTAT BANGALORE
Delayed payment of service tax - demand of interest and penalty - Held that: - the appellant though has not collected the service tax from their main contractor M/s. Wind World India Ltd. but still they have paid the same - the appellants have paid the interest amount of ₹ 15,56,161/- on 05.10.2015 against the demand of ₹ 15,18,104/- and the said amount has been appropriated also in the impugned order.
Penalty - Held that: - in the show-cause notice, the demand of service tax is not under Section 73(1) of the Finance Act and therefore the imposition of penalty on the appellant is unwarranted - penalty set aside.
Appeal allowed - decided in favor of appellant.
-
2017 (11) TMI 834 - CESTAT BANGALORE
Rebate Claim - Section 85(4) of the Finance Act, 1994 - Held that: - the Commissioner(Appeals) vide her order dt. 24/08/2016 has allowed the rebate along with interest and for quantification, she has remanded the case back to the original adjudicating authority as per Section 85(4) of the Finance Act, 1994. Thereafter after three months, the Commissioner(Appeals) on her own has issued a corrigendum whereby she has deleted the interest granted by the earlier order without any basis and without any application made by any party.
The Commissioner(Appeals) has legally passed the order dt. 24/08/2016 and there was no justification in issuing the corrigendum deleting the interest relief to the appellant. Therefore, the corrigendum dt. 17/01/2017 issued by the Commissioner(Appeals) is not sustainable in law.
Appeal allowed - decided in favor of appellant.
-
2017 (11) TMI 833 - CESTAT BANGALORE
Refund claim - invoices addressed to the premises other than the registered premises - Held that: - reliance placed in the judgment of the High Court of Karnataka in the case of mPortal (India) Wireless Solutions Pvt. Ltd. [2011 (9) TMI 450 - KARNATAKA HIGH COURT] wherein it has been held that there is no condition for availing CENVAT credit of input services, there is no condition for obtaining prior registration - appeal dismissed - decided against Revenue.
-
2017 (11) TMI 832 - CESTAT BANGALORE
Penalty - Non-payment of part of service tax - appellant case is that there was no suppression of facts with an intention to evade duty - Held that: - the appellant have failed to pay the service tax during the relevant period but there was no suppression on his part because he has shown the liability of service tax in his balance sheet which has been produced on record - Further, as soon as it was pointed out by the audit, he paid the service tax immediately and thereafter interest was also paid before the adjudication by the first authority - there is no material on record to show the intention to evade payment of tax on the part of the appellant - penalty set aside - appeal allowed - decided in favor of appellant.
-
2017 (11) TMI 776 - SC ORDER
Exemption from levy of service tax on import of services - interpretation of statute - reverse charge transaction - reimbursements made over to service providers - the decision in the case of Coastal Gujarat Power Ltd Versus Commissioner of Service Tax, Mumbai-I [2016 (12) TMI 229 - CESTAT MUMBAI] contested - Held that: - delay condoned - appeal admitted.
-
2017 (11) TMI 775 - CESTAT MUMBAI
Banking and Other Financial Service - services received by the appellant from the foreign collaborator - Rule 6(5) of the Cenvat Credit Rules, 2004 - Held that: - all the issues such as revenue neutrality, period of service and limitation has to be considered in the facts of the present case, which have not been considered - As regard the revenue neutrality even though the Cenvat credit is available to the appellant, the fact that during the relevant period appellant were discharging excise duty/service tax in cash to the extent equal to the service tax liability raised in the present case. Whether the service qualifies as input service etc - Since the adjudicating authority has not verified the factual aspect of the above issues raised by the appellant, matter needs to be remanded to the adjudicating authority - appeal allowed by way of remand.
-
2017 (11) TMI 774 - CESTAT MUMBAI
Reverse charge mechanism - receipt of services - in course of raising fund ECB and FCCB appellant are receiving services of various service provider based outside country like Merchant Bankers, Lead Manager, Advisors, Financial Advisors, Principle Agent, Legal Advisors, Management Consultant, Underwriters etc. - Revenue neutrality - Held that: - Ld. Commissioner did not deal with the issue of Revenue neutrality in detail and the same was rejected on the ground that there is suppression of facts, hence the case does not fall under the Revenue neutrality.
Whether the service on which service tax is payable and claimed as input service is admissible input service in terms of Rule 2(l) of Cenvat Credit Rules, 2004, whether appellant cleared/provided exempted goods/service etc. therefore in absence of examining all these factual aspect revenue neutrality can neither be rejected nor be allowed. Since these factual aspects have not been examined by the adjudicating authority, in the interest of justice, it is desirable to remand the matter to the adjudicating authority.
Appeal allowed by way of remand.
-
2017 (11) TMI 773 - CESTAT HYDERABAD
Rent-a-Cab services - scope of the term 'renting' and 'hiring' - Andhra Pradesh State Road Transport Corporation (APSRTC), the appellants herein, are engaged in operation of buses in the State of Andhra Pradesh for travelling public. They were also providing buses for marriage functions, pilgrimage places etc. to private persons on commercial consideration.
Held that: - under the rent-a-cab scheme, the hirer is endowed with the freedom to take the vehicle, wherever he wishes, and he is only obliged to keep the holder of the licence informed of his movements from time to time. When a person chooses to hire a car, which is offered on the strength of a permit issued by the Motor Vehicles Department, then the owner of the vehicle, who may or may not be the driver, will offer his service while retaining the control and possession of the vehicle with himself. The customer is merely enabled to make use of the vehicle by travelling in the vehicle. In the case of a passenger, he is expected to pay the metered charges, which is usually collected on the basis of the number of kilometers travelled. These are all matters, which are regulated by the Government. Unlike the said scenario, in the case of a rent-a-cab scheme, as is clear from the very fundamental principle underlying the scheme, it is to give the hirer the freedom to use the vehicle as he pleases, which, undoubtedly, implies that he must have possession and control over the vehicle. This is the fundamental distinction between rent-a-cab and a pure case of hiring.
Though both, rent and hire, may, in a different context, have the same connotation; in the context of rent-a-cab scheme and hiring, we are of the view that they signify two different transactions. What the lawgiver has chosen fit to tax by way of imposition of Service Tax is only transaction relating to business of renting of cabs. It is also pertinent to bear in mind that, in the case of hiring, the hirer may refuse to provide the service to the prospective customer. We cannot accept the argument of the learned counsel for the appellant that the Court must ignore the provisions of Section 75 of the Motor Vehicles Act. We are of the view that, when the lawgiver introduced this new source of taxation, it must be treated as having been aware of the distinct concept of renting a cab for which there is provision in the Central Legislation, namely, Section 75 of the Motor Vehicles Act and also a scheme stood framed as early as in 1989. We are, therefore, of the view that, unless there is control, which is passed to the hirer under the rent-a-cab scheme, there cannot be a taxable transaction under Section 65(105)(o), read with Section 65(91) of the Service Tax Act.
Reliance placed in the case of Commissioner of Customs & Cx Meerut Vs. R.S. Travels, [2014 (10) TMI 817 - UTTARAKHAND HIGH COURT] where the Hon’ble High Court reiterated that when there is only a contract of hire and there is no renting of cab, there is no question of assessee being assessed in respect of services rendered in connection with rent-a-cab service.
There cannot be any tax liability on the appellants till 30.06.2012, in respect of hire charges received by them for providing buses for marriage functions/pilgrimages. Accordingly, the relevant portions in these impugned orders, as applicable, where the service tax liability has been upheld in respect of these activities of the appellants till 30.06.2012, will require to be set aside which we hereby do.
Coming to the period from 01.07.2012 all services unless specifically mentioned in the negative list or otherwise, specifically exempted are liable to discharge service tax - for a vehicle having “stage carriage” permit like buses owned by the appellants, to operate for private persons/marriage parties under a contract, such buses will then necessarily be required to obtain a contract carriage permit or a special permit as aforesaid. In our view, once such a contract carriage permit or a special permit is obtained, the bus will then no longer have the character of a stage carriage but will instead acquire the colour of a contract carriage/special permit carriage. Viewed in this light, the buses of the appellants having become “contract carriage or a special permit carriage even if for temporary permit to provide them on hire for marriages/pilgrimage etc., they cannot be considered as a stage carriage for that short period and hence cannot then claim to be covered under the negative list of services as a stage carriage for transportation of passengers, or for that matter, covered by the exemptions provided under notification 25/2012, since that exemption will not cover contract carriage on hire - the demand of service tax in all these appeals for the period from 01.07.2012 onwards is justified by law.
Penalties - Held that: - considering that the matter is one of interpretation and that the question of taxability on the services was mired in confusion and litigation, the penalties imposed in all these cases are set aside.
Appeal allowed in part.
-
2017 (11) TMI 721 - ALLAHABAD HIGH COURT
Restoration of Rectification of mistake application - Held that: - this Court finds that no reasons are recorded in the order of Commissioner (Appeals) for coming to the conclusion that no rectifiable mistake has occurred. It is settled principle of law that the reasons are the soul of an order and in its absence, the order itself is rendered lifeless - rectification application stands restored.
-
2017 (11) TMI 714 - CESTAT MUMBAI
Levy of service tax - Management, Maintenance or Repair service - Cleaning services - Commercial and industrial construction service - Construction service provided to MAHAGENCO - Construction of residential complex - Held that: - the said service was provided to Government Medical College, Nagpur, Visvesvaraya National Institute of Technology, Nagpur and Central Railway. Since the service provided in relation to Government building which is not for commercial purpose the service of management, maintenance or repair of non-commercial Government buildings is exempted for the period from 16.6.2005 to 1.7.2012 in terms of Section 98 of the Finance Act, 1994 - From the reading of the above Section 98 of the Act, it can be seen that the management, maintenance or repair service of non-commercial Government building during the period 16.6.2005 to 1.7.2012 is exempted - demand set aside.
Cleaning services - Held that: - it is observed that the cleaning service was provided by the appellant for the Government building i.e. Ravi Bhavan (Chief Minister Secretariat), Hyderabad House (Dy. Chief Minister Office) and cleaning of MLA Hostel rooms, hall and passage. Since all these buildings for which cleaning service was provided are of Government, therefore it is not taxable under cleaning service - demand set aside.
Commercial and industrial construction service - Held that: - this service was provided in respect of guest house and canteen of Visvesvaraya National Institute of Technology, Nagpur which is an activity of non-commercial in nature. Therefore being a construction of non-commercial building will not fall under the category of commercial and industrial construction service, hence the same is not taxable - demand set aside.
Construction service provided to MAHAGENCO - Held that: - in respect of construction of Podium, Wall Panel etc. for Maharashtra State Power Generation Company Limited (MAHAGENCO) this MAHAGENCO is a independent company which is engaged in generation of power which is a commercial activity therefore construction service provided to MAHAGENCO cannot be said to be a service of construction of non-commercial Government building, therefore in our view the construction service provided for MAHAGENCO is taxable - demand upheld.
Construction of residential complex - Held that: - construction of residential complex of 14 flats was provided for company M/s. Karamchand Thapar & Brothers Ltd. for residence of Directors/Officers of the Company. Even though it is a residential building but it belongs to a company and the building is used in relation to overall business of the company. Therefore it cannot be said that it is non-commercial building, therefore the construction of residential complex for M/s. Karamchand Thapar & Brothers Ltd. is liable for service tax - demand upheld.
Penalty - Held that: - majority of the demand have been set aside and the issue involved is of interpretation of law, a part of the demand was paid by the appellant along with interest - penalty set aside.
Appeal allowed in part.
-
2017 (11) TMI 713 - CESTAT MUMBAI
Non-payment of service tax - architect services - construction of complex service - time limitation - penalty - Held that: - the appellant were collecting the service tax and were not depositing to the Government account. They have also not declared the receipt of the service charges in their ST.3 Return. They have also not declared the correct receipt of the service charges in their Income Tax Return, therefore the malafide intention of the appellant is clearly established, accordingly the demand cannot be set aside on the ground of time bar.
Penalties u/s 76, 77 & 78 - Held that: - penalties u/s 76 set aside - penalties u/s 77 and 78 upheld.
Appeal allowed in part.
-
2017 (11) TMI 696 - CESTAT ALLAHABAD
Valuation - reimbursement discount - includibility - Held that: - the finding of Original Authority in respect of discount dealt with in Para 12.9 of the impugned Order-in-Original and amounts written back dealt with in Para 17 of the impugned Order-in-Original are presumptive in nature and on the basis of presumptions the demand cannot be confirmed - appeal allowed - decided in favor of appellant.
-
2017 (11) TMI 695 - CESTAT ALLAHABAD
Refund claim - unjust enrichment - Held that: - even if the parties to a contract agreed not to pay service tax, but if the tax is chargeable under the provisions of the Act, it has to be paid. Under the facts and circumstances of this case it is admitted fact that the appellant have paid the tax out of its own pocket and not collected the same from the principal-Dishnet Wireless Ltd - the doctrine of unjust-enrichment does not apply - appeal allowed.
-
2017 (11) TMI 694 - CESTAT ALLAHABAD
GTA Service - demand is assessed on the premise that the appellant(s) received transport of goods by road service, defined in Section 65(50a) and (50b) read with Section 65(105) (zzp) - Held that: - The definition of “Goods Transport Agency” in Section 65(50b) clearly specifies that Goods Transport Agency means any person who provides services in relation to transport of goods by road and issues a “consignment note’ by whatever name called. The Explanation under Rule 4B of the Service Tax Rules, 1994 clarifies that “consignment note” is a document, issued by a Goods Transport Agency against the receipt of goods for the purpose of transport of goods in a goods carriage and contains other specified details - Clearly, as no consignment note, as generally understood or delineated in Rule 4B was issued by the transporters to the appellant, in the transactions in issue, the classification by the impugned order that appellant received transportation of goods by road service, is unsustainable - appeal allowed - decided in favor of appellant.
-
2017 (11) TMI 690 - CESTAT ALLAHABAD
Short payment of service tax - Coaching services - Running pre-school classes - Coaching for pre-engineering and pre-medical students - Sale of books to the students who are engaged in preparation of medical and engineering exams - Examination and evaluation of students through test series - Section 67 of the Finance Act - scope of the word 'Commercial' - penalties - Held that: - so far the activity of running pre-school classes is concerned the same is not taxable under the definition as contained in Section 65(27) - demand set aside.
Conducting of test series Held that: - the same is not taxable as there is no finding by the learned Commissioner that the appellant have held any classroom guidance either before the test or after the test. The tax has been demanded only on presumption that such tests also improve the skills of the prospective examinees - demand set aside.
Sale of books - Held that: - it is an admitted fact by the Department that the appellant have separately recorded the receipts on account of sale of books in their books of accounts maintained on tally software in the regular course of business. Further, there is no finding to the contrary by the Commissioner that the appellant have not done the activity of purchase and sale of books or have bifurcated their coaching receipts under the head of ‘sale of books’ - demand set aside.
The demand of ₹ 5,60,607/- based on imprest account is an mere assumptions and presumptions and hence liable to be set aside.
Appeal allowed - decided in favor of appellant.
-
2017 (11) TMI 661 - DELHI HIGH COURT
Service tax on advocates - period from 1st April 2016 to 5th June 2016 - Reverse charge mechanism - fees payable to advocates - N/N. 30/2012-ST dated 20th June 2012 - Held that: - There is no prejudice caused to the Department for the simple reason that the service tax from 1st April 2016 itself ought to have been collected on reverse charge basis. If any client who has paid the fees of the Senior Advocate, has failed to make payment of the corresponding service tax on reverse charge basis, it would be open to the Department to proceed against such client to recover the service tax in accordance with law - petition disposed off.
-
2017 (11) TMI 660 - CESTAT BANGALORE
Closure of proceedings - invocation of Section 73(4A) of FA - duty paid alongwith interest and penalty - Held that: - the appellant has paid the service tax along with interest and also paid 1% penalty and requested the department for closure of the proceedings but the department did not close the proceedings and proceeded to issue the show-cause notice and by passing the impugned order imposed various penalties. Further, I also find that the Commissioner has allowed the closure of the proceedings only for the period 8.4.2011 t 31.3.2012 by holding that the said proviso is only prospective and also held that no penalties are imposable for this period.
Tribunal in the case of SS Service providers [2016 (9) TMI 486 - CESTAT CHANDIGARH] has held that provisions of Section 73(4A) will be applicable even for the period prior to the issuance of Show-cause notice. If the ratio of the above decision is followed, then the department should have closed the proceedings as the appellant has paid the duty, interest and 1% penalty.
Once the appellant pays duty along with interest, no show-cause notice should have been issued.
Appeal allowed - decided in favor of appellant.
-
2017 (11) TMI 659 - CESTAT MUMBAI
Refund of unutilized CENVAT credit - export of services - providing SMS Aggregator services to facebook, Ireland - rejection on the ground that the services of BSS provided by the Respondent to M/s Facebook does not qualify as export of service - whether the Respondent are eligible to refund of accumulated cenvat of input services in terms of Rule 5 of Cenvat Credit Rules? - Held that: - Under the terms of agreement we find that the Respondent is getting paid by the facebook based upon the number of SMS messages successfully transmitted through Respondent's network. It also provides the fees based upon the Billable Message Length , Unicode Message, Undelivered Message which would not be chargeable, Long Codes fees etc. It provides the fee structure based upon nature of message. In sum and substance the Respondent is rendering services to M/s Facebook and getting fees for services provided in each month.
The subscribers are not even aware of the existence of the Respondent and their role in services provided by Facebook. The Respondent and the subscribers are not into contractual agreement. There is no consideration flowing to the Respondent from such subscribers. The Respondent is working under the directions/instructions and discretion of Facebook. The subscribers are dependent upon facebook for receipt/ delivery of their SMSs - The Tribunal in the case of M/s Paul Merchants Ltd. [2012 (12) TMI 424 - CESTAT, DELHI (LB)] has held that Export of Services Rules, 2005 and Taxation of Services (Provided from Outside India and Received in India) Rules, 2006 have been framed, following general principle that taxable service provided by a person in India will be subject to tax only when it has been consumed in India, and Service Tax must be levied in that taxable area where service has been consumed.
Coming to the Rule 3 of the Place of Provision of Service Rules, 2012 and its application to the instant case, we find that the proviso to said Rule states that in case location of the service provider is not available in the ordinary course of business, the place of the provision shall be the location of the provider of Service. Further as per Rule 2 (i) of the said Rules the Location of Service Provider is the location of his business establishment. In the case in hand there is no dispute about the facts that the service recipient is Facebook which is located outside India and thus its location is available. Hence the Indian subscribers of Facebook cannot be termed as "Service Recipient". In such case even the Rule 8 of POP would not apply as the service recipient i.e Facebook is situated in Ireland which is located outside India a non taxable territory.
There is no dispute about the fact that the consideration of service was received from M/s Facebook in convertible Foreign Exchange therefore there is no doubt in our mind that the services of the respondent is clearly exported to Facebook, Ireland, hence the refund claim under Rule 5 of Cenvat Credit Rules, 2004 is admissible to the respondent.
Appeal dismissed - decided against Revenue.
-
2017 (11) TMI 658 - CESTAT MUMBAI
CENVAT credit - input services - Case of Revenue is that the appellant is engaged in providing output service i.e. lending of loan. The activity of seizing of vehicle by the recovery agent appointed by the appellant is not an input service for lending of loan to the customer, therefore the service does not fall under the category of input service, accordingly cenvat credit was disallowed - Held that: - the lending service is not limited to disbursing the loan but it includes the recovery of the said lended money which is one of the vital part of the overall activity of lending of money. Therefore the service received for taking repossession of the vehicle by recovery agent is an input service which is used for the service of lending.
Any service used for providing output service is an input service. As discussed above, the service of taking repossession of the vehicle which is an activity in relation to recovery of the loan is used for overall service of lending. Therefore as per the main part of the definition, the service of recovery agent received by the appellant is an input service.
Appeal allowed - decided in favor of appellant.
............
|
