|
Advanced Search Options
Service Tax - Case Laws
Showing 161 to 180 of 222 Records
-
2017 (11) TMI 409 - CESTAT BANGALORE
Refund claim - service tax paid erroneously - export of services - time limitation - Section 11B of the CEA, 1944 - Held that: - The Department instead of asking the appellant to file fresh application seeing refund should have refunded the amount - the second application which was filed by the appellant was not required to be filed and therefore the question of time-bar does not arise in this case and therefore the impugned order dismissing the refund claim of the appellant on time-bar is not sustainable in law.
Entitlement to interest - Section 11BB of the CEA - Held that: - reliance placed in the decision of the Allahabad High Court in the case of Siddhant Chemicals Vs. Union of India [2014 (5) TMI 59 - ALLAHABAD HIGH COURT] wherein it has been held that interest has to be paid automatically under Section 11BB of the CEA and the payment of interest is not dependent on claim by the party instead authority is statutorily obligated to pay the interest - interest allowed.
Appeal allowed - decided in favor of appellant.
-
2017 (11) TMI 405 - CESTAT NEW DELHI
Scope of SCN - Taxability - amount received from their clients under the category of “V-SAT Charges” - whether taxable under the head “lease circuit service” or otherwise? - Held that: - the Original Authority proceeded to levy the tax on the said income under “Stock Broker Service” - such proceedings are beyond the scope of the show cause notice as no reference regarding Service Tax liability of the appellant in respect of V-SAT charges was sought to be levied under “Stock Broker Service” - proceedings fails - appeal allowed - decided in favor of appellant.
-
2017 (11) TMI 404 - CESTAT CHANDIGARH
CENVAT credit - Refund claim - N/N. 41/2007-S.T., dated 6-10-2007 - Technical Inspection and Certification Agency services - Clearing and Forwarding Agent services - Held that: - the appellant is seeking to avail Cenvat credit on these services, on which initially they sought refund and refund has not been granted to the appellant - As it is not disputed that these services are input services for the appellant, Cenvat credit on these services are allowed.
Service provided by the Commission Agent located outside India - refund claim - Held that: - the said service has been availed by the appellant for export of goods and Service Tax has been paid thereon, which has not been disputed - appellant is entitled to take refund.
Appeal allowed - decided in favor of appellant.
-
2017 (11) TMI 403 - CESTAT BANGALORE
Rectification of mistake - applicability of N/N. 13/2003-S.T., dated 20-6-2003 - issue involved in the present appeal was of exemption N/N. 13/2003-S.T., dated 20-6-2003 which can only be decided by a Division Bench and not by Single Member Bench - Held that: - there is no error apparent on the record which needs to be corrected and the said decision need not be recalled as the appellant has participated in the proceedings and has not raised the said objection till the disposal of the case - ROM application dismissed.
-
2017 (11) TMI 402 - CESTAT CHENNAI
Consulting Engineering Service - Assessee’s grievance is that it was a mere supervisor and not a “Consulting Engineer” who supervised the erection and commissioning of the mills - Held that: - When any service is provided to a client by Consulting Engineer in relation to advice, consultancy or technical assistance in any manner in one or more disciplines of engineering, the service provider shall be called as “Consulting Engineer” - There is no material on record to show that there was any erection work carried out by appellant. Documents placed depicts that appellant was supervisor to provide technical assistance for the purpose of erection and installation - demand upheld.
Penalty - Held that: - there was nothing suppression of any fact made by appellant and it was only an interpretational error which should not press the appellant to suffer penalty - penalty set aside.
Appeal allowed in part.
-
2017 (11) TMI 401 - CESTAT NEW DELHI
Benefit of N/N. 34/2004-S.T. - GTA services - denial of exemption on the ground that the freight payable by the appellants are intentionally split-up into small consignment in order to show that they did not exceed ₹ 750/- per consignment - Held that: - the proceedings by the lower authorities are mainly based on allegations and presumptions, without any categorical evidence - Based on the illustrative documents submitted by the appellant, we find no evidence of deliberate split-up or manipulation, to claim the benefit of the said Notification. In order to sustain such allegation, the Revenue should have brought out clear evidence, which is lacking in the present proceedings - benefit of notification allowed - appeal allowed - decided in favor of appellant.
-
2017 (11) TMI 400 - CESTAT BANGALORE
CENVAT credit - input services - sales commission paid for sale of their goods - Held that: - Clause 2 of the Memorandum of Understanding is very clear and clearly shows that what is undertaken by the IOCL is in reality a sales promotion activity and therefore the appellants are entitled to take Cenvat credit of the input service i.e. sales promotion activity - credit allowed - appeal allowed - decided in favor of appellant.
-
2017 (11) TMI 399 - CESTAT HYDERABAD
CENVAT credit - duty paying documents - allegation against the appellant is that they availed irregular credit on the invoices in which the service tax was not shown separately - Held that: - It is brought out from records that M/s. Sree Venkateswara Enterprises and others to whom the appellant had paid rent filed ST-3 returns reflecting the service tax portion of the rent paid by appellant. Later M/s. Sree Venkateswara Enterprises has issued invoices showing the service tax separately. On these invoices the appellant has taken credit to discharge their service tax liability on output services of subletting of immovable property - appeal allowed - decided in favor of appellant.
-
2017 (11) TMI 398 - CESTAT NEW DELHI
Benefit of N/N. 12/2003-S.T., dated 20-6-2003 - taxability of value of the goods and materials sold by the service provider to the recipient of service - Held that: - The appellant has pointed out that there has been study of the data based on which it was concluded that for their service contracts the percentage value of the goods and material is 50% - further, there has not been any substantial reasons and evidences to counter the contents of the documentary proof submitted in terms of the N/N. 12/2003-S.T. giving necessary abatement benefit to the appellant - appellant is entitled to the benefit of notification - appeal allowed - decided in favor of appellant.
-
2017 (11) TMI 397 - CESTAT MUMBAI
GTA service - freight including payment through an agent for transportation - scope of Rule 2(1)(d) of the Service Tax Rules, 1994 - Held that: - the agreement with the transporter is entered by the appellant themselves and not by the dealer. In these circumstances, it appears to be a mechanism has been devised to mislead the Service Tax authorities and to avoid payment of Service Tax. So long as liability to pay transporter is of appellant, the physical payment through dealers for connivance or for practical reasons, does not change the liability to tax - appeal dismissed - decided against appellant.
-
2017 (11) TMI 355 - SC ORDER
Insurance as well as reinsurance broker – international insurance - service providers situated abroad - import of services and / or export of services - the decision in the case of Suprasesh General Insurance Services & Brokers Pvt. Ltd. Versus The Commissioner of Service Tax, Custom, Excise And Service Tax Appellate Tribunal [2015 (9) TMI 1219 - MADRAS HIGH COURT] contested, where it was held that the basis of the circular, which is clarified that Notification Nos.6/99 dated 09.04.1999, 9/01 dated 16.07.2001, 13/02 dated 01.08.2002 and 2/03 dated 01.03.2003 would not apply to export of service, the question of receiving the payment in convertible foreign exchange does not arise - Held that: - leave granted.
-
2017 (11) TMI 354 - CESTAT CHENNAI
Valuation - includibility - Fuel Surcharge (YQ Tax) - Passenger Service Fee (PSF) - GDS cost collected (YR) - Held that: - The controversy concerning taxability of Passenger Service Fee collected by the airlines from the passengers in their air ticket has indeed been set to rest in the case laws adduced by the Ld. Advocate. Hence there can be no service tax liability on the quantum of 'passenger service fees' collected by the appellant under this head.
For the limited purpose of ascertaining whether the tax liability that was alleged in respect of "other taxes" has also been paid up by the appellant along with interest as averred, the matter is being remanded back to the adjudicating authority. In such de novo proceedings, in case it is ascertained that all the tax liabilities except that relating to Passenger Service Fee has been paid by the appellant along with interest thereon, there shall be no further tax liability in respect of these proceedings.
Penalty - Held that: - there was sufficient cause for the appellant's failure to discharge their tax liabilities. Another mitigating factor is that the appellants have paid up the entire tax liability as admitted by them along with interest, before the issue of the show cause notices. Keeping all these aspects in mind, we are of the considered opinion that imposition of penalty would be an overkill, for which reason, they are set aside.
Appeal allowed in part and part matter on remand.
-
2017 (11) TMI 353 - CESTAT CHENNAI
Management, Maintenance or Repair Services - operational activities - levy of service tax - Held that: - the facts in relation to operational activities performed by the appellant under the Operation and Maintenance Agreement entered into by them with Madurai Power Corporation are identical to the facts in the earlier decision of this Tribunal in Shapoorji Pallonji Infrastructure Capital Company Ltd. [2017 (6) TMI 225 - CESTAT CHENNAI], where it was held that The activity carried out in the power plant is not solely management of power plant, but operation of the same. The word operation is not used in the definition of Maintenance and repairservices which is relied by department as amended with effect from 16.06.2005 - the consideration apportioned towards operational activities by the appellant will not attract levy of service tax under Management, Maintenance or Repair Services under Section 65 (64) of the Act - decided in favor of appellant.
Levy of service tax - consumables - Held that: - Appellants herein have not availed any cenvat credit in respect of consumables utilized. This being so, the beneficial provisions of N/N. 12/2003-CE will then be applicable to the appellant - decided in favor of appellant.
Appeal allowed - decided in favor of appellant.
-
2017 (11) TMI 352 - CESTAT MUMBAI
Levy of tax - sale of food and beverages - documentary evidence - Revenue's challenge is only on the ground that the assessee could not produce the documentary evidence which is required for not taxing the consideration towards the sale of food and beverages as per the Board Circular B1/6/2005-TRU dt. 27.07.2005 - Held that: - the Commissioner (Appeals) had dropped the demand of ₹ 15,41,486/- on account of sale of food and beverages, considering the documents such as VAT Returns, Bar Room Sales Leger, Summary of Bar Room VAT Report, Specimen Bills etc. therefore it cannot be said that the Ld. Commissioner (Appeals) had dropped the demand without any basis. The documents referred in the finding of the Ld. Commissioner (Appeals) are more than sufficient to establish the receipt towards sale of food and beverages. Therefore, we do not find any infirmity in the order in as much as it dropped the demand of ₹ 15,41,486/- - decided against Revenue.
Doctrine of mutuality - whether consideration receipt by the club from their members is taxable or otherwise? - Held that: - Considering the doctrine of mutuality therefore all said judgments cited are also in jeopardy, accordingly this Tribunal cannot take any decision on the merit of the case in the present legal status of the issue on merit - As regard the quantification error pointed by the assessee in their grounds of appeal. We find that there appears to be apparent errors and if the same is rectified the demand would be substantially reduced - matter on remand.
Partly decided against Revenue and part matter on remand.
-
2017 (11) TMI 351 - CESTAT MUMBAI
Penalty u/s 76 and 78 of FA - delay in payment of tax - invocation of Section 73(3) of the Finance Act, 1994 - extended period of limitation - Held that: - the question of financial hardship does not arise as the liability was to be discharged on amounts received. It is also seen that the figure mentioned in the Balance Sheet do not match with the returns filed by them. The appellant have also admitted their liability to Service Tax and admitted to failure to deposit the same, in these circumstances invocation of period of limitation is justified and consequently penalties under Section 76 & 78 become are imposable.
Invocation of section 80 - The appellant have sought benefit of Section 80 on the ground that their transactions are recorded in their Books of Account and non-payment of Service Tax to the appellant by their client - Held that: - The liability of appellant arise by receipt of payment from the client. There cannot be a liability if payment has not been received, during the impugned order. Thus non receipt of Service Tax amount cannot come in way of their ability to pay. The fact that transactions are recorded in Books of Account is not material, as they needed declare the same in the ST-3 return - By not declaring the values in the ST-3 return they have failed to shows the correct liability, in these circumstances Section 80 is not applicable.
Appeal dismissed - decided against appellant.
-
2017 (11) TMI 350 - CESTAT MUMBAI
Manpower Recruitment and Supply Agency Service - whether the employees of the appellant deputed to the their other group companies against which they received consideration towards remuneration of those employees during 2006-07 to 2009-10 falls under category Manpower Recruitment and Supply Agency service as defined under sub clause (k) of Section 65(105) of the Finance Act, 1994 and liable for Service Tax? - Held that: - from shareholding pattern it is seen that some companies share holding is less than 50%, therefore it cannot be said that these are subsidiaries of the appellant - Similarly in other subsidiary companies it has to be ascertained, whether in of case different limited company, whether there is relationship of service provider and service recipient. Since the adjudicating authority has not gone into details of constitution of the each company and share holding pattern, matter needs to be remanded to the adjudicating authority - appeal allowed by way of remand.
-
2017 (11) TMI 349 - CESTAT HYDERABAD
Commercial training and coaching centre services - Extended period of limitation - effect of amendment, retrospective or prospective - N/N. 9/2003-ST dated 20.06.2003 as amended by N/N. 24/2003-ST dated 10.09.2004 - Held that: - the explanation as to what is vocational training institute indicates that the said exemption can be extended to any vocational training institute which imparts skills to enable the trainee to seek employment or undertake self-employment directly after such training or coaching. It is nobodys case in all these appeals that for completion of the educational programmes conducted by the appellants, students are employed either directly by the employers or can seek self-employment. We find that in support of such a claim, appellants have enclosed a list of the students who were employed by various industries on successful completion of education programmes conducted by the appellants. In our view, there can not be any doubt as to the fact that the students successfully completing the educational programmes of the appellants are being selected for employment by various organisations.
It is evident that the term "vocational training institute" included the commercial training or coaching centers which provide vocational coaching or training meant to "impart skills to enable the trainees to seek employment or to have self employment directly after such training or coaching. The notion of such training institute having been recognized or accredited to nowhere emerges from such a broad definition. The further Notification of 2010 substitutes the existing explanation to the term "vocational training institute"and narrowing it to those institutes affiliated to National Council for Vocational Training offering courses in designated trade in fact supports the assessee. Had the intention been to exempt only such class or category of institutions, the appropriate authority would have designed such a condition in the original Notification of 2003 and Notification No. 10 of 2004.
Service tax demands raised and confirmed in the denovo adjudication by denying the benefit of exemption notification for the period 1.07.2003 to 31.3.2005 is incorrect and unsustainable - appeal allowed - decided in favor of appellant.
-
2017 (11) TMI 348 - CESTAT KOLKATA
Validity of SCN - Time limitation - Held that: - the SCN was issued after a period of 5 years - the Adjudicating Authority has followed the Circular No. 58/2003, dated 20-5-2003. When it is so then we find no need to interfere with the impugned order and the same is sustained. The observations of adjudicating authority on Section 11D is not correct as Section 11D does not provide any rigid time limit. However, show cause notice under Section 11D has to be issued within reasonable period - appeal dismissed - decided against Revenue.
-
2017 (11) TMI 347 - CESTAT HYDERABAD
CENVAT credit - GTA services - whether appellant is eligible to avail credit on GTA services for the period October, 2005 to March, 2006? - sub-section (4) of Section 84 - Held that: - The provision of sub-section (4) of Section 84 expressly states that no order shall be passed by the Commissioner when an appeal is pending before the Commissioner (Appeals). Therefore, the order passed by the Commissioner confirming the penalty under Section 76 as well as confirming the demand of interest is against law - appeal allowed - decided in favor of appellant.
-
2017 (11) TMI 346 - CESTAT NEW DELHI
Security services - levy of tax - whether providing armed security guards to public sector banks/undertakings and Govt. departments is to be covered under the definition of ‘security services’ and collection of charges for the same will be liable to service tax under the Finance Act, 1994?
Held that: - CBEC has issued a Circular No. 89/7/2006-S.T., dated 18-12-2006 clarifies that wherever the charges collected by any sovereign public authority for carrying out any statutory function, the same is not liable to levy of service tax subject to three conditions - CESTAT in the case of Dy. Commissioner of Police & Others v. CCE, Jaipur & Others, [2016 (12) TMI 289 - CESTAT NEW DELHI] concluded that the police department which is in the agency of State Government cannot be considered to be a person engaged in the business of running security services.
It is on record that the appellant is depositing the money collected on account of the subject services in the Govt. treasury. It is also on record that the appellant is performing statutory function which is one of the three conditions of the CBEC Circular dated 18-12-2006 and it has also been claimed that the collection of the fee levied by the appellant is as per the provisions of relevant law.
Appeal allowed - decided in favor of appellant
....
|
