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Service Tax - Case Laws
Showing 121 to 140 of 222 Records
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2017 (11) TMI 657 - CESTAT NEW DELHI
Valuation - Security Agency Service - Revenue held a view that the appellant did not consider the gross amount received for rendering the taxable service to discharge service tax. They have paid service tax only on their commission - Held that: - pleading bonafide understanding of law to the effect that service tax liability only on the commission accruing to them, the appellant did not pay service tax on the salary component paid to the Security Guard which in turn was received from the clients. We find that the appellant have made out a case for such bonafide belief though now they are not contesting on the merit of their tax liability as upheld by the lower authorities - Considering the nature of scope of the appellant activity run by ex-Service men, we find that provision of Section 80 can be invoked to set aside the penalty imposed under Section 78 on the appellant.
While upholding the tax liability which in any case is not contested, we set aside the penalty imposed - appeal allowed in part.
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2017 (11) TMI 656 - CESTAT ALLAHABAD
GTA Service - transportation of sugarcane from collection centres to the factory - Revenue made out a case that as the recipient of services for transportation of sugarcane from collection centres to the factory, the Appellant was liable to pay service tax on the amounts paid to the transporters - Held that: - the definition of “Goods Transport Agency” under Section 65(50b) of Finance Act, 1994 and provision of Rule 4A of Service Tax Rules are logically inconsistent. The entry in the Act defines “Goods Transport Agency” as one which issues consignment notes and thereafter Rule 4B says that “Goods Transport Agency” have to issue consignment note. So which criteria have to be satisfied first is not clear. That is to say if a goods transport operator does not issue consignment note he does not come within the meaning of “Goods Transport Service” and then the requirement under Rule 4B also is not enforceable.
The provisions of Service Tax are not attracted in the transaction involved, as the appellant have only acted as a facilitator for the farmer for quick and speedy transport of sugarcane to the factory to ensure more effective recovery of sugar.
Appeal allowed - decided in favor of appellant.
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2017 (11) TMI 616 - CESTAT NEW DELHI
Business auxiliary service - Since, the appellant did not register with the Department and did not pay the Service Tax on the commission amount received from the service receiver M/s. LIC Housing Finance Ltd., the Department proceeded against the appellant for confirmation of the Service Tax demand - Held that: - the Service Tax demands raised by the Department are not entirely barred by limitation of time. Some of the demand is within the normal period prescribed under Section 73 ibid. Since, the demands within the normal period has not been quantified by the authorities below, the matter should go back to the original authority for quantification of the Service Tax demand within the normal period, which should be paid by the appellant.
Penalty - Held that: - the appellants had no intention to defraud the Government revenue, the penalties cannot be imposed on the appellant. Accordingly, this is a fit case for invocation of Section 80 ibid. Thus, the penalties imposed against the appellant are set aside.
Appeal allowed by way of remand.
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2017 (11) TMI 615 - CESTAT NEW DELHI
Construction and erection activities in terms of contract entered into with oil companies - tax liability - the SCN made a general allegation for tax liability. It referred to two different tax entries but with no separate demand - Held that: - as per the law laid down by the Hon’ble Supreme Court in Larsen & Toubro Ltd. [2015 (8) TMI 749 - SUPREME COURT] no service tax liability will arise in respect of composite works contract prior to 01.06.2007 - it is necessary for the original authority to have a fresh look into the facts of the case and to apply the correct legal position for a fresh decision - appeal allowed by way of remand.
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2017 (11) TMI 614 - CESTAT KOLKATA
GTA service - non-payment of service tax - validity of appeal before the Commissioner (Appeals) against the adjudication order - Held that: - Revision proceedings are not permitted when the issue in question is pending in appeal before the Commr. Of Central Excise (Appeals).
Penalty u/s 76 - Held that: - There is no attempt on the part of the appellant to distinguish the facts of the case in respect of imposition of penalty under Sec. 76 as imposed by the Commr. Of Central Excise. Therefore, I do not find any reason to interfere with the impugned order.
Appeal dismissed - decided against appellant.
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2017 (11) TMI 613 - CESTAT NEW DELHI
Clearing & Forwarding Agent Services - case of appellant is that Since clearing activities by the appellant is absent in the present case, the activities undertaken by the appellant for its client will not fall under the ambit of such service for the purpose of levy of service tax - Held that: - the appellant is only engaged in forwarding the goods received at DEWS Unit by diverting the materials to different depots located within such zone/area. Since the appellant is not involved in clearing the goods from the factory of its principal, M/s. Grasim Industries, it cannot be said that the appellant is providing both clearing & forwarding service to its principal - the activities of only “forwarding” without involvement of any clearing activities will not subject to levy of service tax under the category of “clearing & forwarding agent service”.
In an identical set of facts, this Tribunal in the case of Commissioner of Central Excise, Meerut-II Vs. Rakesh Ahuja & Others [2016 (12) TMI 596 – CESTAT-Allahabad], while dismissing the appeal filed by the Revenue, has held that in absence of any provision of clearing service, other services of receiving /storing of goods and delivering the same on the direction of the principal would not fall under the purview of taxable service as defined under Section 65(105) ibid.
Appeal allowed - decided in favor of appellant.
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2017 (11) TMI 612 - CESTAT NEW DELHI
Construction of complex service - case of appellant is that service rendered by them are composite in nature involving supply of materials and provisions of service. Such composite contract are not liable to tax prior to 1.6.2007 - Held that: - the submissions of the appellant are based on the nature of contract and also judicial pronouncements, many of them are after issue of the impugned order - we deem it fit and proper that these factual matters along with the law laid down by the 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] requires examination by the original authority - appeal allowed by way of remand.
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2017 (11) TMI 611 - CESTAT HYDERABAD
Rectification of error - maintainability of appeal - Held that: - though the Registry has pointed out the defects, the appeals which have been filed by the appellant before this Tribunal under Diary Nos. 30581-30593/2017 are not maintainable; as I find that the provisions of Section 74 of Finance Act, 1994 which has been invoked by the appellant seeking modification of the order-in-original, were dismissed by the Principal Commissioner, is not an adjudication order challengeable under Section 86 of the Finance Act, 1994 - in the absence of any provisions to consider the appeal against an order passed under provisions of Section 74 of the Finance Act, 1994, I am not able to go into the matters statutorily. Accordingly whether there are defects or not these appeals are not maintainable before this Tribunal - appeal not maintainable.
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2017 (11) TMI 610 - CESTAT BANGALORE
Rent-a-cab service - Held that: - in the present case, the appellant is not primarily engaged in the business of rent-a-cab operator. He is only arranging vehicles for their clients from outside agencies for which he is only getting a commission and that amount of commission has been shown in his ledger which is produced on record. Further, the learned Commissioner (Appeals) has mis-construed the definition of rent-a-cab operator service as provided in Section 65(76) of the Act because the appellant is not engaged in the business of “rent-a-cab service” - appeal allowed - decided in favor of appellant.
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2017 (11) TMI 609 - CESTAT ALLAHABAD
Refund claim - consumption of services in the course of export mainly port services - N/N. 41/2007-S.T. (as amended) - which is the date of export order or till which stage the services received by the appellant are allowable for the purpose of refund under the N/N. 41/2007-S.T. (as amended)? - Held that: - all the services received till the goods reached the gateway, port or the port of export and/or loaded on the ship or aircraft for the purpose of export till such time, are allowable for exemption/refund under the provisions of N/N. 41/2007-ST (as amended) - refund allowed - appeal allowed - decided in favor of appellant.
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2017 (11) TMI 549 - MADRAS HIGH COURT
Rectification of mistake - GTA service - appeal against the order of Commissioner (Appeals) - Whether, in the facts and circumstances of the case, the decision of CESTAT in refusing to recall the Final Order for purpose of hearing the appeals together was correct in law even after admitting and correcting the mistake? - Held that: - there is no need to advert to the substantial questions of law, raised in the instant Civil Miscellaneous Appeals and at the same time, reserve the rights of the appellant to raise all tenable grounds and substantial questions of law, on the merits of the case, if any, appeal is filed, against Final Order No.41563 of 2017 in Appeal No.ST/505/2009, dated 09.08.2017 - reserving the rights of the appellant in both the appeals, instant Civil Miscellaneous Appeals are dismissed
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2017 (11) TMI 548 - CESTAT BANGALORE
100% EOU - Interest on delayed refund - relevant date - expiry of three months from the date of receipt of application for refund or on the expiry of the said period from the date on which the order of refund is made - Held that: - This issue is no longer res integra and has been settled by various decisions of the Tribunal; the High Court and the Supreme Court - the Hon’ble Supreme Court in the case of Ranbaxy Laborites [2011 (10) TMI 16 - Supreme Court of India] has categorically held that the appellant is entitled to interest after the expiry of three months from the date of filing the refund application till the refund is finally sanctioned - appeal allowed - decided in favor of appellant.
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2017 (11) TMI 547 - CESTAT NEW DELHI
Valuation - Event management services - The case of the revenue is that service tax is payable on the gross amount charged by the service provider, including the expenses incurred by the appellant and subsequently reimbursed by the service receiver - case of appellant is that such expenses have been incurred by the appellant on behalf of the clients as a pure agent and hence not includible in the assessable value for charging service tax - Held that: - Section 67 of the Finance act deals with the valuation of services for charging of service tax. The said section was substituted w.e.f. 01.05.2006. Concurrently the service tax valuation rules were also introduced which provide for arriving at the value for purpose of charging service tax. Under old section 67 the value of taxable services was defined as “Gross amount charged by the service provider”.
The period involved in the present case is from Oct 2002 to March 2007. It covers the period covered under old and new section 67 - By considering the nature of service provided by the appellant, we are of the view that all such expenditure would go towards provision of event management services by the appellant. The service itself cannot be completely rendered without such equipments or services. Hence we have no hesitation in concluding that such amounts are to be considered as part of gross amount charged by the appellant.
Pure Agent - rule 5 (2) of the Service Tax Valuation Rules 2006 - Held that: - In the said rule, expenditure incurred by the service provider as a pure agent can be excluded from the value of taxable service subject to the condition that all the eight conditions specified there are satisfied - it is to be concluded that the appellant did not have the capacity to act as pure agent and did not fulfill the conditions of pure agent under the relevant rule. Hence the appellant will not be entitled to exclude expenses incurred.
Reliance placed in the decision in the case of Neelav Jaiswal & Brothers Versus CCE, Allahabad [2013 (8) TMI 147 - CESTAT NEW DELHI], where it was held that unless all the conditions pure agent are satisfied, the appellant will not be entitled to any exclusion from the taxable service for amounts received towards salary, provident fund, etc.
Quantum of service tax to be demanded - Held that: - the case is required to be remanded to the adjudicating authority for re-quantification of demand for consideration of the misgivings of the appellant.
Appeal allowed in part and part matter on remand.
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2017 (11) TMI 546 - CESTAT NEW DELHI
Real estate agent service - consideration received under the heading “Administrative Charges” for allowing transfer of flat buyers right to another person - Held that: - identical issue decided in the case of CST, New Delhi Versus M/s Ansal Properties And Infrastructures Ltd. [2017 (9) TMI 1071 - CESTAT NEW DELHI], where it was held that the respondent is a real estate developer selling their constructed flats. They are dealing with the buyers, old or new, on principal to principal basis. Accordingly, we are in agreement with the impugned order that no service tax liability can be confirmed against the respondent under this category - demand set aside - appeal allowed - decided in favor of appellant.
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2017 (11) TMI 545 - CESTAT NEW DELHI
Valuation - amount reimbursed towards fee payable to broadcast personnel - Department was of the view that service tax was required to be paid on the full amount received by the appellant from M/s. Prasar Bharti - case of appellant is that appellant was only acting as an agent of M/s. Prasar Bharti and have received reimbursement of the broadcast personnel fees which in turn has been paid by the appellant to the personnel as a “pure agent” - Held that: - section 67 specifies that wherever the provision of service is for a consideration, the taxable value would be a gross amount charged by the service provider for such service. The Service Tax (Determination of Value) Rules 2006 provides for exclusion from the taxable value, amount received in the capacity of “pure agent”.
To decide whether the appellant was acting as a pure agent, we need to refer to rule 5 (2) of the Service Tax Valuation Rules 2006. In the said rule, expenditure incurred by the service provider as a pure agent can be excluded from the value of taxable service subject to the condition that all the eight conditions specified there are satisfied - The adjudicating authority has elaborately discussed these criteria and held that appellant has not fulfilled the same - the appellant cannot be treated as a pure agent as defined in the rules. Consequently, the appellant is required to discharge service tax on the full amount received from M/s. Prasar Bharti i.e. including both the commission at the rate of 10% as well as broadcast fees.
Reliance paced in the case of Neelav Jaiswal & Brothers Versus CCE, Allahabad [2013 (8) TMI 147 - CESTAT NEW DELHI], where it was held that unless all the conditions pure agent are satisfied, the appellant will not be entitled to any exclusion from the taxable service for amounts received towards salary, provident fund, etc.
Demand upheld - Appeal dismissed - decided against appellant.
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2017 (11) TMI 544 - CESTAT NEW DELHI
Refund claim - service tax paid under the ‘Work Contract Service’ - time limitation - Held that: - identical issue has come up before the Tribunal in the case of Ramky Infrastructure Ltd. Vs. CST-II Kolkata [2017 (4) TMI 1130 - CESTAT KOLKATA], where it was held that As the payment made by the appellant is not of service tax, therefore, as held by this Tribunal in the case of Shankar Ramchandra Auctioneers (2010 (4) TMI 391 - CESTAT, MUMBAI) the provisions of section 11B of the CEA are not applicable - refund allowed - appeal allowed - decided in favor of appellant.
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2017 (11) TMI 543 - CESTAT NEW DELHI
Business Auxiliary Service - Commercial Training or Coaching Centre Service - demand on the ground that Business Auxiliary service was received by Bentley, Australia for its business in India and also used/ utilised in India - Held that: - with regard to categorization of service for the purpose of consideration as export, under Export of Service Rules 2005, the CBEC vide Circular dated 24.02.2009 has clarified that for category III services, falling under Rule 3(1)(iii) ibid, even if the relevant activities taken place in India, the said service should be considered as export, so long as the benefit of those services accrued outside India - In the present case, since the appellant had provided the services to M/s.Bentley, Australia, such service should be construed as export, in view of the clarification furnished by the CBEC - demand set aside.
Commercial Training or Coaching Service - demand on the ground that the same was provided by the appellant for imparting skill and knowledge and also the services do not fall under the exclusion part of such definition - Held that: - It is an admitted fact on record that the appellant is an Information Technology Company, engaged in providing IT Services. The software provided by the appellant cannot be used by the customers /clients, unless their employees are properly trained to use such software. Thus, in such an eventuality, providing of assistance/training to the customer/client of the software would be construed as incidental and ancillary to the sale of software. Thus, providing such training will not fall under the purview of Commercial Training or Coaching Centre Service - demand set aside.
Appeal allowed - decided in favor of appellant.
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2017 (11) TMI 542 - CESTAT BANGALORE
Non-speaking order - appealable order - CENVAT credit - input services - Held that: - the impugned order is not sustainable in law because, the learned Commissioner (Appeals) has not given any finding on merits and has straightway rejected the appeal of the appellant on the ground that the original authority has not passed any appealable order - the letter issued by the Superintendent to the assessee is an appealable order and the learned Commissioner should have decided the appeal on merits rather than dismissing the same being not maintainable - appeal allowed by way of remand.
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2017 (11) TMI 541 - CESTAT CHANDIGARH
Refund claim - rejection on the ground of time bar and part refund rejected on the ground that the appellant has not provided copy of the agreement of commission paid to the foreign commission agent who provided the services to the appellant - Held that: - the said refund claim has been filed within one year, the period provided for filing refund claim. As per CBEC Circular, the time-limit has been extended to one year in terms of N/N. 17/2009-S.T., dated 7-7-2009 - refund allowed being not time barred.
The refund claim of ₹ 80,545/- has been denied on the ground that appellant has not produced copy of agreement for providing the services, which is in fact not required as per the notification in question, as the invoices issued by a foreign agent for availing the services is sufficient document to entertain the refund claim - refund cannot be denied.
Appeal allowed - decided in favor of appellant.
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2017 (11) TMI 540 - CESTAT BANGALORE
Penalty - proviso to Section 73(1) - Extended period of limitation - manpower recruitment agency service - department found that the activity undertaken by the appellant was liable to be classified under manpower recruitment agency service and the fact of rendering taxable service was unearthed only because of the verification conducted by the officers of the department and the appellant had suppressed the taxable value - Held that: - the appellant has started supplying the manpower from 1-5-2008 and at that time this service was not taxable and this service was made taxable with effect from 16-5-2008 and therefore the appellant was not aware that his activity is taxable service - Further when the department on verification pointed out, then immediately the appellant deposited the service tax along with interest before the issue of show cause notice and that itself shows his bona fides to pay the tax and there is no allegation in the show cause notice that he has suppressed the facts with intention to evade tax - penalty unjustified - appeal allowed - decided in favor of appellant.
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