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Service Tax - Case Laws
Showing 141 to 160 of 222 Records
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2017 (11) TMI 539 - CESTAT CHENNAI
Condonation of delay in filing appeal - Held that: - Appellant being a Municipality and has enormous responsibilities of the nature aforesaid, if its appeal is thrown at the threshold without condonation of delay, the public body shall suffer and public interest would be hampered. Therefore the delay is condoned.
Looking to the co-operative attitude of the appellant, it is considered proper to grant an opportunity to the appellant to reconcile the facts and figures for determination of appropriate liability so that Revenue’s interest shall be protected.
Appeal allowed by way of remand.
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2017 (11) TMI 538 - CESTAT CHENNAI
Cargo Handling Service - department’s allegation is that the appellant was a cargo handler and provided cargo handling service - Held that: - Appellant’s activity does not begin with loading nor end with unloading. Its primary activity from the origin itself was transporting. Unit rate was fixed by the appellant to be charged from the recipient of services. Without any objective examination done by Revenue to show that, the activity carried out by appellant was for packing, unpacking as well as loading and unloading, it cannot be presumed that the appellant had provided Cargo Handling Service - appeal allowed - decided in favor of appellant.
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2017 (11) TMI 537 - CESTAT NEW DELHI
Leasing of equipments - Department entertained a view that such renting of goods should be covered under taxable category of Business Support Service - Held that: - providing of equipment on rent is not categorized in any of the activities itemized therein - the appellant is no way connected to the business establishment for running the business of the client and is only supplying the equipment on rental basis. Providing of equipment on rent, per se cannot be called infrastructure support service. The scope of BSS as defined cannot cover simple renting of equipments - demand set aside - appeal allowed - decided in favor of appellant.
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2017 (11) TMI 536 - CESTAT NEW DELHI
Telephone services - retention of part of deposit made, when the connection was discontinued prematurely - Held that: - There is nothing on record to suggest that the portion of the deposit retained by was towards provision of telephone service. The expenditure under Section 67 providing for adjustments made form any deposit to be considered as part of assessable value was given in a different context. In respect of schemes such as Own Your Telephone (OYT wing) a part of charges for telephone service was recovered by debiting of security deposit - In the facts of the present case, the retention of the portion of deposit towards capital expenditure incurred and not for provision of telephone service - demand set aside - appeal allowed - decided in favor of appellant.
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2017 (11) TMI 535 - CESTAT CHENNAI
Refund claim - appellant prays that same transaction having been doubly taxed, firstly, in the hands of the service provider and secondly, in the hands of the service recipient, appellant is entitled to refund of the amounts so doubly paid - Held that: - Once, tax was paid by service provider and later by the service recipient. State has been doubly benefited. Therefore, recourse available to the State is to refund the money not due to the State. It is established principle of law that any amount not due to the State is not collectible - The doctrine of unjust enrichment equally applies to the State.
It is directed that the appellant should be refunded of the amount paid by service provider to the appellant - Since there is double payment and the liability was of the appellant, the appellant should not be denied Cenvat credit.
Appeal allowed - decided in favor of appellant.
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2017 (11) TMI 483 - RAJASTHAN HIGH COURT
CENVAT credit - input services - GTA Services - auction services - outdoor catering services - insurance services - rent-a-cab services - Clearing and forwarding agency service - scope of the term "up to the place of removal" - Held that: - the Tribunal has recorded a finding that from the verification of bills, it is found that transport charges are required to be borne out by the assessee. Therefore, that issue is also required to be decided in favor of assessee.
Cargo Handling Services - Insurance Services - Held that: - reliance placed in the decision of Gujarat High Court in Commissioner of Central Excise and Customs vs. Ultratech Cement Ltd. [2014 (9) TMI 187 - GUJARAT HIGH COURT] and it is held that the issue is answered in favor of assessee.
Rent a Cab Service - Held that: - reliance placed in the decision in the case of The Commissioner of Central Excise Service Tax Bengaluru-IV, Versus Ultra Tech Cement Ltd. [2016 (7) TMI 1080 - KARNATAKA HIGH COURT], where it was held that credit is allowed - the issue is required to be answered in favour of assessee.
Club and association services - Held that: - it is clear that it is club activities for going for a sale or any other assigned work. It will be operational, manufacturing activity.
Place of removal - Whether rule 4 (c) will come into operation or not? - Held that: - In view of Section 2(t), it is very clear that the meaning does not define under the Cenvat Credit Rules, 2004 then the meaning is to be derived from the provisions of the Act - Mr. Ranka contended that 3(2) prohibits it only for the purpose of defence services under 4(c) since no other place, the word ‘removal’ has been defined. In that view of the matter to come out to a conclusion for removal of the goods, the meaning which has been defined under 4(c) is required to take into account - the matter is answered in favor of assessee.
Appeal dismissed - decided against Revenue.
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2017 (11) TMI 482 - CESTAT NEW DELHI
C&F service - Department was of the view that the amounts covered by invoices issued towards transportation was nothing but a part of the consideration received by the appellant from YMI for clearing and forwarding services - Held that: - C&F service rendered for YMI include not only receipt and storage of the vehicle, but also despatch of the same to the destination. Under such terms of the provision of service, all consideration received by the appellant from YMI should form part of the consideration for payment of tax under C&F agent service. Since loading and unloading, handling and transportation of goods upto the destination was an integral part of C&F service, we are of the view that transportation charges alone cannot be bifurcated and charged separately to service tax under GTA service - also, the appellant does not satisfy the condition of being considered as Goods Transport Agency.
The transportation charges received should form part of the consideration for C&F service - appeal dismissed - decided against appellant.
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2017 (11) TMI 481 - CESTAT MUMBAI
GTA service - Short payment of service tax - appellant had received soya seeds from various mandis through trucks, without issuance of the billities/LR (consignment notes) - Held that: - The term “goods transport agency” is defined u/s 65(2) (50b) of the Finance Act, 1994 to mean, “any person who provides service in relation to transportation of goods by road and issues consignment notes by whatever name called”. Thus, from the above definition, it transpires that in order to qualify a person to be goods transport agency, the mandatory requirement is issuance of the consignment notes, which in the present case has not been issued. Hence, transporters transporting the goods for the appellants are not conforming to the definition of “goods transport agency” for the purpose of payment of service tax by the appellant under “reverse charge mechanism” - appeal allowed - decided in favor of appellant.
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2017 (11) TMI 480 - CESTAT NEW DELHI
Business Auxiliary Services - whether the appellant is liable to pay service tax on commission and other amounts received from the service recipient M/s. Air India/ Indian Airlines under the taxable category of Business Auxiliary Service? - Held that: - the issue is no more res integra, in view of the decision of this Tribunal in the case of Patel Air Freight [], wherein it has been held that the commission received from the Airlines for providing services connected with air cargo, is liable for service tax under the category of BAS.
Extended period of limitation - Held that: - contravention of the statutory provisions and non-payment of Service Tax was not intentional and there is no element of fraud, suppression etc., in order to evade payment of tax - in absence of the ingredients mentioned in the proviso to Section 73 (1) of the Finance Act, 1994, the Service Tax demand should be restricted to the normal period of one year only.
For quantifying the adjudged demand within the normal period, the matter should go back to the original authority - appeal allowed by way of remand.
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2017 (11) TMI 444 - SUPREME COURT
Renting of immovable property - levy of service tax - lease rentals - who is liable to bear the burden of tax i.e. the provider of services (lessor) or the recipient of services (the lassee) - scope of agreement - lease (rent) deed does not refer to service tax.
Held that: - It is clear, on a conspectus of the authorities of this Court, that service tax is an indirect tax, meaning thereby that the said tax can be passed on by the service provider to the recipient of the service. Being a tax on service, it is not a direct tax on the service provider but is a value added tax in the nature of a consumption tax on the activity which is by way of service. It is settled by various judgments of this Court that, in order to have conceptual clarity, the taxable event and the taxable person are distinct concepts.
In Babu Ram Jagdish Kumar & Co. v. State of Punjab, [1979 (5) TMI 135 - SUPREME COURT OF INDIA], this Court made it clear that, in the case of a purchase tax, the “taxable event” is the purchase of paddy, whereas the “taxable person”, who is the person liable to pay the tax, is the purchaser - In the present case, therefore, the “taxable event” is the provision of the service of renting out immovable property, and the “taxable person”, that is the person liable to pay tax, is the service provider, namely the lessor.
The fact that service tax may not, in given circumstances, be passed on by the service provider to the recipient of the service would not, therefore, make such tax any the less a service tax. It is important to bear this in mind, as the main prop of Shri Jaideep Gupta’s argument is that service tax being an indirect tax which must be passed on by virtue of the judgments of this Court, would make the recipient of the service the person on whom the tax is primarily leviable.
Though in law and under clause 6 of the lease deed the Appellant is not required to pay service tax, we are loathe to upset the finding of the learned single Judge based upon a letter by the Appellant to the Respondent in which the Appellant has expressly stated that it was liable to pay service charges - the the case is in favor of appellant on law, but is against the appellant on facts - appeal dismissed - decided against appellant.
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2017 (11) TMI 442 - SC ORDER
Tax liability - Alleged that appellant had provided various services as per agreement they had entered into with the owner and accordingly demand were made along with interest and penalty - the decision in the case of CMS (I) OPERATIONS & MAINTENANCE CO. P. LTD. Versus C. CE, PONDICHERRY [2007 (5) TMI 74 - CESTAT, CHENNAI] contested, where it was held that allegation was not correct and demand, interest and penalty set aside - Held that: - the decision in the above case upheld - there are no legal and valid ground for interference - appeal dismissed.
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2017 (11) TMI 435 - CESTAT CHENNAI
Business Auxiliary Service - Video Tape Production Services - export of service - Held that: - we are not able to fathom how the adjudicating authority, having stated that the appellants are not engaged in the recording of any programme etc. has concluded that services or restoration, giving special effects etc. on the old films would be a "Video Tape Production". Ostensibly, the department and the adjudicating authority have been influenced by the second limb of the definition of "Video Tape Production" in Section 65 (120) of the Act. The definitions have to be read in totality and part thereof cannot be picked up to justify that the activities performed in the instant case will come under "Video Tape Production Services".
The appellants will certainly not fall under the ambit of "Video Tape Production Services" - appeal allowed - decided in favor of appellant.
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2017 (11) TMI 427 - CESTAT CHENNAI
CENVAT credit - duty paying documents - denial on the ground that the bills raised by the service provider are in the name of the Project Manager and not directly in their name - Held that: - the said plea of the appellant cannot be entertained at this stage and in as much as the appellant has not addressed any other argument in respect of the said amount and has not produced any evidence, the said amount has to be confirmed. As regards the Cenvat credit of ₹ 4,18,122/-, the sole ground of rejection of assessees claim is non-rectification of the bills. In terms of the earlier order the authorities were required to look into the parallel evidence to find out whether the services have been received by the appellant or not and have been consumed by them or not. The appellants have placed on record sufficient evidence to show that such payments for the services were made by them and the job order etc. Such evidences are required to be examined - appeal allowed by way of remand.
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2017 (11) TMI 426 - CESTAT BANGALORE
Short payment of service tax - time limitation - proviso to Section 73 of the Act - Held that: - the demand in the present case is hopelessly barred by limitation as the SCN was issued on 31.12.2007 for the period February 2006 and there is no allegation of suppression of information with intent to evade payment of duty - the fact that M/s. MSIL made excess payment to the appellant on account of certain irregular billing was made known to the appellant only in the month of June 2005 and more particularly from the letters dated 10.06.2005 and 27.06.2005 of MSIL.
These excess payments made to the appellants were deducted by the said MSIL during the period May 2005 to February 2006 and therefore the question of reporting this excess payment or discrepancy by the appellants in their return filed for half year ending March, 2005 does not arise and therefore invoking the extended period on the ground that till the audit objection the appellants have not brought out the discrepancy in their return filed for the half year ending March, 2005 is not sustainable.
Appeal of the appellant allowed both on merit as well as on limitation.
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2017 (11) TMI 425 - CESTAT BANGALORE
Refund claim - export of services - Event Management Service - denial on account of nexus - Held that: - in the impugned order there is no discussion with regard to Event Management Service and its nexus with the output service and further there is no discussion regarding inconsistency in computation of the amount eligible for refund - Event Management Service in the present case is an input service as is covered by various decisions relied upon by the appellant.
For the purpose of removing the inconsistency in the computation, I remand the case back to the original authority to pass a reasoned order after correcting the inconsistency as has been done by the original authority - appeal allowed by way of remand.
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2017 (11) TMI 422 - CESTAT MUMBAI
Condonation of delay - delay of 101 days in filing the cross objection - Held that: - the said delay is solely for the reason of pure negligence. In the grounds of condonation of delay application no date chart has been given to explain a delay of over 100 days. The period during which they had gone out of India has also not been explained and confirmed - No evidence of late receipt has been produced by the applicant.
If the date of receipt of the appeal by the appellant is accepted as 23.11.2016 as claimed by them in their COD application, the appeal was filed by Revenue on 8.7.2016 and it is unlikely that the order was received by the applicant almost five and half months after the appeal was filed by Revenue. In these circumstances, the applicants have failed to show reasonable cause for condonation of delay.
Delay cannot be condoned - application for COD dismissed.
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2017 (11) TMI 419 - CESTAT MUMBAI
Penalty u/s 78 - non-payment of service tax - malafide intent - Held that: - Hon’ble Madras High Court judgment in the case of Vikash J. Shah Vs. Commissioner (Appeals), Coimbatore [2016 (2) TMI 442 - MADRAS HIGH COURT], wherein the Hon’ble High Court has held that there cannot be any liability to pay service tax when the tax is already available in the form of Cenvat. This Tribunal has taken view that when the cenvat credit is available, the non-payment of service tax/duty only creates revenue neutral situation. In this case admittedly there was cenvat of ₹ 19 lakhs available with the appellant therefore to that extent appellant was not required to pay service tax in cash and it was only adjustable against the said cenvat credit. Therefore the penalty of ₹ 19 lakhs i.e. equal to the Cenvat Credit under Section 78 of the Finance Act, is not sustainable - demand of service tax, interest and payment thereof made by the appellant is maintained - appeal allowed in part.
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2017 (11) TMI 418 - CESTAT MUMBAI
Value based exemption - N/N. 4/07 dated 1-3-2007 - case of appellant is that during the period 2007-08, 2008-09 and 2009-10 exemption of threshold limit of ₹ 8 Lacs/10 Lacs was not considered by the Commissioner(Appeals) under the N/N. 6/05-ST dated 1-3-2005, 04/07-ST dated 1-3-2007 and 08/2008-ST dated 1-3-2008 - Held that: - the Ld. Commissioner denied exemption upto threshold limit of ₹ 10 Lacs during the year 2008-09 on the ground that the appellant have exceeded the limit of ₹ 8 Lacs in the preceding financial year i.e. 2007-08. However, as per the amendment N/N. 8/2008-ST dated 1-3-2008, the value of the preceding financial year i.e in 2007-08 should not exceed ₹ 10 Lacs. This is not under dispute that the appellant have not exceeded ₹ 10 Lacs in 2007-08, hence they are entitle for exemption upto ₹ 10 Lacs in the year 2008-09. The appellant in their chart claimed that cum tax value on total value i.e. ₹ 8,06,224/- in year 2007-08 and ₹ 15,05,984 in 2008-09, which is not correct. For the exempted value i.e. ₹ 8 Lacs and ₹ 10 Lacs respectively cum tax benefit not available being the said amount is not liable for service tax.
The adjudicating authority is directed to re-quantify the demand - appeal allowed by way of remand.
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2017 (11) TMI 417 - CESTAT MUMBAI
Taxability - services received from foreign entity in relation to External Commercial Borrowings from abroad - appellant argued that since the service tax payable is available as Cenvat credit, entire activity is revenue neutral - Held that: - issue of revenue neutrality can be decided only after verification of certain facts - matter to be remanded for verification of the facts and to decide the revenue neutrality, limitation and penalty etc. - appeal allowed by way of remand.
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2017 (11) TMI 416 - CESTAT NEW DELHI
Refund of unutilized CENVAT credit - claim was made on the ground that they have used various input services in providing the output service of works contract service which was exported out of India - Held that: - even though the illustration regarding the maximum refund permissible stands deleted vide Finance Act, 2010, the restriction of refund to the extent of the ratio of export turn over to the total turnover still remains in the condition.
It is an admitted fact on record that the appellant has rendered output services which are exported as well as exempted services for which no service tax is payable. Consequently, in terms of the above condition 5 of the said notification, the restriction applied on the refund claim is justified.
Imposition of restriction - claim of appellant is that cannot be imposed on the refund claim for the reason that the appellant is already maintaining separate books of account for taxable and exempted services and, therefore, Cenvat credit taken by them as per Rule 6(2) pertains to export of services only - Held that: - As per the provisions of Rule 6 ibid, the appellants exercised their option of maintaining separate accounts for taxable and exempted services. The right of the appellants to exercise this option has not been challenged by the adjudicating authority. But the said rule is independent of the applicability of the conditions of both of Rule 5 of CCR, 2004 and of N/N. 5/2006-CE(NT) dated 14.3.2006.
Appeal dismissed - decided against appellant.
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