|
Advanced Search Options
Service Tax - Case Laws
Showing 181 to 200 of 222 Records
-
2017 (11) TMI 345 - CESTAT NEW DELHI
Penalty u/s 76 and 78 - payment of tax with interest and 25% penalty on being pointed out - Manpower Recruitment Agency service - Held that: - Since, the SCN in the present case has been issued on 28-8-2009, which is after the date of amendment of Section 78 and imposition of penalty under such provision has been invoked, no further penalty under Section 76 ibid can be imposed on the appellant - penalty u/s 76 and 78 set aside - appeal allowed - decided in favor of appellant.
-
2017 (11) TMI 344 - CESTAT NEW DELHI
GTA service - N/N. 34/2004-S.T., dated 3-12-2004 - Held that: - the exemption is only available on first voucher and not on subsequent vouchers - In the instant case, the lower authorities have already disallowed the claim on the vouchers which are in numbers but each below ₹ 1500/-. Thus the order appears reasonable as per the Golden Rule of Interpretation for the reason that in the said N/N. 30/2004 the word “a” transaction is already mentioned.
Penalty u/s 76 - Held that: - In the instant case, the Appellate authority has already cancelled the another penalty. When it is so, then we find no reason to interfere with the order impugned which is hereby sustained along with the reasons mentioned therein.
Appeal dismissed - decided against appellant.
-
2017 (11) TMI 301 - CESTAT MUMBAI
CENVAT credit - input - doors, windows, frames tiles, cement etc. used for construction of shopping mall - capital goods - Lift, Escalator, Chillers, DG Sets, Heat Exchangers Wire, Cables, Fire Equipments, Water Pumps etc. which was installed in the mall for renting of the shops in the mall - input services - architect service, business auxiliary service, C&F agency service, cargo handling service, works contract service, consulting engineer service, erection, commissioning and installation service, these services were used in the construction of mall - insurance, management maintenance and repair service etc., these services were used for the operation of the shopping mall.
Inputs - steel cement, doors, windows etc. used for construction of shopping mall - Held that: - As per the definition of input for the purpose of providing service, it is clear that only on those inputs Cenvat is allowed which are used for providing the output service. In the present case, cement, steel, for steel, angles, channels etc. were not used for providing output service i.e renting of immovable property. The same was used for providing construction service which is not the output service of the appellant, therefore the cenvat credit is not admissible. Moreover, w.e.f. 7.7.2009 the said goods were excluded from the definition of input service - demand upheld.
Capital goods - denial on the ground that on the ground that these capital goods after installation become immovable goods, therefore the credit is not admissible - Held that: - all the capital goods were cleared by the supplier on payment of duty therefore the capital goods as such can not be said that it is immovable goods. Merely by installing the capital goods it does not become an immovable goods. If this contention of the adjudicating authority is accepted then all the capital goods such as machinery, equipments, appliances installed in the factory for production will not be eligible for cenvat credit. Therefore merely by installation of duty paid capital goods, it can not be said that it is immovable goods all the capital goods were used in the shopping mall to facilitate the shop owners for operation of the mall, who have been given the shops on rent by the appellant. Therefore all these capital goods were directly used by the appellant for providing output service i.e. renting of immovable property service. Accordingly the cenvat credit on the capital goods is admissible - demand set aside.
Input service - whether the input service credit is at all admissible for the construction of a mall which is used for providing Renting of Immoveable Property Service? - Held that: - for the input services for which input service tax credit was availed at Pune, the invoices are addressed to their Bombay office. However this will not be a bar in availing the credit as the appellant had taken centralized registration at Pune before availing the credit and they did not avail credit on any input services in Mumbai as reflected in the relevant ST-3 returns. It was also submitted by them that there is no other project in the company. Therefore we find no reason to deny the credit on this ground - demand set aside.
Delay in taking credit - Held that: - the appellant took the credit only when the mall was completed. Prior to that they may not have been sure whether the property is to be sold or rented. Actually 20% of the property was sold out. Therefore they took cenvat credit when the remaining property was ready to be rented out. In these circumstances, in our considered view, the substantial benefit cannot be denied to them and the delay can be ignored especially when there is no violation of legal provisions.
CENVAT credit - services such as advertisement, broadcasting, C.A., cleaning service, insurance service, management maintenance and repair service etc. - denial on the ground that these services have no nexus to the output service of renting of immovable property - Held that: - the service used whether prior to construction or after completion of the construction, the cenvat credit is admissible for the reason that the services used prior to the construction is in relation to the construction of service which is admissible input service.
Once demand was of wrongly cenvat credit is proposed, there cannot be an another demand of recovery of service tax which was discharged by utilizing so called wrongly availed credit for the reason that by recovery of the wrongly availed credit whatever service tax paid by utilizing cenvat credit will hold good, no further recovery can be made. Therefore the demand of service tax even though paid by utilising the cenvat credit again confirmed for recovery is not legal and proper. Therefore the demand of service tax amounting to ₹ 2,06,67,771/- is set aside.
Appeal allowed in part.
-
2017 (11) TMI 300 - CESTAT MUMBAI
Erection, commissioning and installation service - sub-contract - the appellants are doing the work in the nature of sub-contracting and the main contractor has paid taxes on the entire value - case of appellant is that service tax cannot be demanded from the appellants as it would result I double levy of service tax - services provided within the SEZ - revenue loss or revenue neutrality situation.
Held that: - it is apparent if the main contractor was availing of this notification he could not have availed of the credit of the tax paid by the appellant. Thus in those circumstances the situation would not be revenue neutral. Moreover the main contractor has been granted abatement from the value only for the reason that the credit of the duty paid on the inputs and input services (by the sub contractors) has not been allowed, and also for the reason that the sub contractors have already paid duty on the value of inputs and input services. If the appellants contention is accepted it would result in defeating the very purpose of the notification and will also result in loss of revenue to the government - For provision of any output service numerous inputs services are required. For example, a consultant providing consultancy would receives input services in nature of (i) renting of immovable property service (ii) Air Travel services (iii) Business Support Service (iv) Manpower supply service (v) renting a cab services and so on. If the consultant is paying tax on the entire value of service provided by him, then would all services provider listed become exempt from paying service tax as sub-contractor. If the argument of the appellant is accepted then every provision of services to another taxable service provider would not be liable to payment of service. This situation can only lead to chaos.
The appellants are involved in providing services to the main contractor which they claimed to be a sub-contract. The appellants are providing services to the main contractor and not the owner of the land. Moreover the nature of services provided by the appellants to the main contractor is not the same as those provided by the main contractor to its client.
A perusal of the above circular clearly indicates that the services in respect of which the clarification has been issued relates to the services where the exercise is revenue neutral. In all these cases the main provider of service is put to tax on full value and in those circumstances if the sub-contractor/input service provider pays any service tax, the same is available as credit to the main service provider. It is apparent that these circulars were intended to reduce un-necessary work and not to provide exemption or give away revenue. In the instant case however, the main contractor is not entitled to the credit of service tax paid by sub-contractor if he is availing notification No.01/2006. Thus any service tax paid by the subcontractor would come as revenue to the Government and no credit of same would be available to the main contractor - the appellants are liable to pay service tax even when they are providing service to other contractor.
Provision of services in SEZ - denial of N/N. 19/2003-ST or 1/2006-ST - denial on the ground that the appellants had failed to produce necessary documents - Held that: - The appellants have claimed that the commissioner has not given any reasons for denying the benefit. We do not understand what documents are needed in support of the claim made by the appellants. The commissioner should have identified the documents which he needs and only thereafter decided the issue. In absence of such identification and failure of appellants to produce the said documents the order cannot be sustained - matter remanded to the original adjudicating authority to identify the documents required and quantify the demand afresh.
Appeal allowed by way of remand.
-
2017 (11) TMI 299 - CESTAT KOLKATA
Refund claim - export of goods - N/N. 41/2012-ST dated 29.06.2012 as amended - main contention of the Revenue is that the particulars furnished in each and every column, must be shipping bill wise - Held that: - there is no requirement to determine FOB value shipping bill wise to determine the formula enumerated in Para 1 (c) or in Para 3 (i) of the notification - appeal dismissed - decided against Revenue.
-
2017 (11) TMI 298 - CESTAT MUMBAI
Works contract - erection, installation and commission of street lights - non-paymnet of service tax - The only defence of the appellant as regard the service of installation of street lights is that the service is related to the road therefore it is excluded from the taxable service under the head of works contract - Held that: - the installation of street lights is totally an independent service which is nothing to do with the road construction, the street lights may or may not be required besides the road, therefore it is not related to construction of road. Accordingly the service of installation of street lights being an independent service clearly falls under works contract service and during the relevant period it was taxable - demand upheld.
Time limitation - Held that: - firstly appellant had not declared the transaction in their ST-3 return subsequently despite knowing the taxability of the said service, they have not come forward and informed to the department regarding the provision of service. In these circumstances there is a clear suppression of fact on the part of the appellant - extended period rightly invoked.
As regard the claim of the appellant that certain services like laying of cable shifting of cable for the purpose of widening of road etc. a service tax demand of ₹ 8919/- is not sustainable - Held that: - such service is not taxable as per the Board Circular No. 123/05/2010 dt. 24.5.2010 - demand set aside.
Appeal allowed in part.
-
2017 (11) TMI 297 - CESTAT MUMBAI
GTA services - reverse charge mechanism - consignment note - case of appellant is that the service provider have not issued any consignment note and hence they will not be covered under the scope of Goods transport Agency - Held that: - reliance placed in the appellant's own case M/s Ultratech Cement Ltd. Versus Commissioner of Central Excise, Kohlapur [2017 (3) TMI 1155 - CESTAT MUMBAI], where it was held that consignment note is misplaced as in this case the transporting companies have only raised invoices for transportation of cement clinkers as per the contract which did not satisfy the requirement of the consignment note and the responsibility cast for issuing the consignment note is not met to hold that Goods Transport Agency Services are rendered.
The Appellant in respect of service in question are not liable to service tax - appeal allowed - decided in favor of appellant.
-
2017 (11) TMI 296 - CESTAT BANGALORE
Refund of the service tax paid - denial on the ground of time bar and also for not producing the sufficient document - Held that: - this case needs to be remanded to the original authority as has been done earlier in identical cases JOSH P JOHN AND OTHERS Versus CST, BANGALORE AND OTHERS [2014 (9) TMI 597 - CESTAT BANGALORE] - this case also needs to be remanded to the original authority - appeal allowed by way of remand.
-
2017 (11) TMI 295 - CESTAT BANGALORE
Refund claim - input services - security agency service - manpower recruitment service - denial on the account of nexus - Held that: - the learned Commissioner (A) has considered both these services as input services, hence the same are necessary for rendering the output service - In view of the well-reasoned order passed by the Commissioner (A), I find no infirmity in the impugned order - appeal dismissed - decided against Revenue.
-
2017 (11) TMI 294 - CESTAT BANGALORE
Refund of unutilized CENVAT credit - input services - manpower recruitment service - training services - security services - repair and maintenance services - Held that: - all the services have been held to be input services by various decisions of the Tribunal and the High Courts - reliance placed in the case of M/s. Coca Cola India Pvt. Ltd. Versus The Commissioner of Central Excise, Pune-III [2009 (8) TMI 50 - BOMBAY HIGH COURT], Commissioner of Service Tax Vs. Jubilant Biosys Ltd. [2014 (7) TMI 1196 - CESTAT BANGALORE] - refund allowed - appeal dismissed - decided against Revenue.
-
2017 (11) TMI 293 - CESTAT BANGALORE
Penalty u/s 76, 77 and 78 - Whether the revisional authority has jurisdiction to impose penalty for the first time when it has not been imposed by the adjudicating or assessing authority by invoking Section 80? - Held that: - reliance placed in the case of COMMISSIONER OF SERVICE TAX Versus M/s MOTOR WORLD & Others [2012 (6) TMI 69 - KARNATAKA HIGH COURT], where it was held that when the assessing authority in its discretion has held that no penalty is liable, by resorting to Section 80 of the Act, then the Revisionary Authority cannot invoke his jurisdiction under Section 80 and impose penalty - penalty set aside - appeal allowed - decided in favor of appellant.
-
2017 (11) TMI 292 - CESTAT BANGALORE
Refund of unutilized CENVAT credit - input services - denial on the ground that assessee had not obtained service tax registration during the period - Held that: - this issue is no longer res integra and has been settled in favour of the assessee by the jurisdictional High Court in the case of mPortal India Wireless Solutions P. Ltd. Vs. CST, Bangalore [2011 (9) TMI 450 - KARNATAKA HIGH COURT] wherein the Hon’ble Karnataka High Court has held that registration of the Department is not a pre-requisite for claiming the credit - appeal dismissed - decided against Revenue.
-
2017 (11) TMI 291 - CESTAT HYDERABAD
GTA services - cargo handling services - It is alleged in the SCN that the appellant herein had engaged vehicles/trucks from various transport organisations and were sent to their customers for transportation of goods - whether appellant is required to discharge the service tax liability under the category of goods transport agency or otherwise? - reverse charge mechanism - Held that: - service tax liability on goods transport agency services is under reverse charge mechanism more so if the consignor or consignee falls in one of the category as indicated hereinabove or a person who is liable to pay freight charges. It is on record that appellant herein does not discharge the freight charges but claims the amount from their client who pays it to the transporters from whom they engaged the vehicles - identical issue decided in the case of ESSAR LOGISTICS LTD. Versus COMMISSIONER OF CENTRAL EXCISE, SURAT [2014 (6) TMI 763 - CESTAT AHMEDABAD], where it was held that it is very clear that the legislative intent is to tax only the services provided by a Goods Transport Agent to a customer and not the owner.
Appeal allowed - decided in favor of appellant.
-
2017 (11) TMI 290 - CESTAT BANGALORE
Interest - penalty u/s 77 and 78 - non-payment of service tax - bonafide belief - Held that: - the liability under renting of immovable property service was challenged and the same is still pending before the apex court, in these circumstances, appellant had a bona fide belief that they are not liable to pay service tax, but thereafter they paid the same - the appellants are entitled for the benefit of Section 80 of the Finance Act, 1994 and by resorting to Section 80, penalty u/s 77 and 78 waived - But as far as interest liability is concerned, the appellants are liable to pay the interest as per the provisions contained in Section 75 of the Finance Act, 1994 - appeal allowed in part.
-
2017 (11) TMI 289 - CESTAT BANGALORE
Penalty u/s 78 - evasion of service tax - suppression of the value of the services provided - Held that: - the Commissioner (Appeals) after considering various decisions has come to the conclusion that the assessee had no intention to evade the payment of service tax and therefore by resorting to Section 80 of the Finance Act, the Commissioner (Appeals) has held that the lower authority has correctly given the benefits under Section 80 because the assessee has paid the service tax along with interest - appeal dismissed - decided against Revenue.
-
2017 (11) TMI 288 - CESTAT MUMBAI
Intellectual property rights service - scope of service - failure to pay service tax on the provision of technical know-how - time limitation - Held that: - The appellants have relied on the decision of the Tribunal in the case of Mormugao Port Trust Versus Commissioner of Customs, Central Excise & Service Tax, Goa- (Vice-Versa) [2016 (11) TMI 520 - CESTAT MUMBAI] to assert that any payment made by a joint venture to participating company cannot be treated as consideration for the service. It is seen that the said decision was passed wherein the appellants had clearly claimed that the royalty earned was not a consideration towards renting of immovable property but it was the share of Revenue from services which were jointly rendered by the assesee and the joint venture - in the instant case, there is no claim to the effect on royalty paid is the share of profit from the joint venture to Vemmar SRL, Italy. The appellant company has specified shares of each of the participates in the joint venture in the ratio of 51%, 35% and 14% respectively. Any share of the profit if distributed has to go to each of the partner in the ratio of their shares. In the instant case, Vemmar SRL, Italy is receiving the said amount. Thus, the payment made to Vemmar SRL, Itay cannot be considered as share of its profit of the joint venture. Thus, the facts are different in the instant case and therefore, the decision of the Tribunal in the case of Mormugoa Port Trust (supra) cannot be applied to the instant case.
The legal provisions defining the nature and scope of taxable service, namely intellectual Property Right & Intellectual Property Service are defined under clauses (55a) and (55b) of Section 65 of Chapter V of the Finance Act, 1994. The Intellectual Property Right means any right to intangible property namely, trademarks, designs, patents or any other similar intangible property, under any law for the time being in force, but does not include copyright. In the present case I find that the services received by the noticee includes Product &Process Technology required for manufacture of helmets. The JVA allows transfer of services on temporary basis and those services appears to be provided by a person who has established a business or has a fixed establishment from which the service is provided and his permanent address or usual place of residence is outside India. Under these facts, I hold that the services received by the notice are falling under the category of taxable service. Thus this taxable service is to be treated as if the recipient had himself provided the service in India.
Extended period of limitation - Held that: - the show-cause notice has been issued within the period of five years prescribed under the clause pertaining to extended period of limitation. The date of knowledge of department has no relevance if the extended period has been invoked on the grounds mentioned under Section 73 of the Finance Act.
Revenue neutrality - Held that: - availability of credit to the appellant of such duty paid has not been examined by the impugned order. We are of the view that the said issue is an important issue which needs to be examined before any findings on invocation extended period of limitation are given. The revenue neutrality has an implication on the invocation of extended period of limitation.
Penalties - invocation of section 80 - Held that: - the said issue also needs to be decided after examining the issue of revenue neutrality.
Appeal allowed by way of remand.
-
2017 (11) TMI 256 - CESTAT CHENNAI
CENVAT credit - excess cenvat credit, over and above the prescribed limit of 20% utilized by the appellant - Held that: - a perusal of Rule 6(3)(c) indicates that there is no such restriction that 20% credit earned should be utilized within a particular period - the decision in the case of M/s. C.L. Educate Versus Commissioner of Service Tax, Delhi [2015 (10) TMI 2544 - CESTAT NEW DELHI], relied upon, where it was held that There are no specific restrictions or prohibitions contained in Rule 6 of the Cenvat Rules, providing for reversal of cenvat credit on monthly/periodic basis - appeal allowed - decided in favor of appellant.
-
2017 (11) TMI 246 - CESTAT BANGALORE
Penalty u/s 70 of Finance Act, 1994 read with Rule 73 of STR 2004 - failure in filing the service tax return in time - Held that: - perusal of provisions of section 70 of the Finance Act, 1994, prior to its amendment and after the amendment effective from 08.04.2011, I find that with regard to six returns the appellant is liable to pay ₹ 12,000/- penalty at the rate of ₹ 2,000/- per return - the two returns pertaining to the period April 2009 to Sept. 2009 and April 2010 and Sept. 2010 were nil return and therefore, he is not liable to pay any penalty for the nil return.
In all maximum penalty which can imposed on the appellant is ₹ 18,000/- and therefore the impugned order imposing the penalty of ₹ 1,80,000/- is wrong and illegal and infact the appellant is liable to pay only ₹ 18,000/- as penalty - appeal allowed in part.
-
2017 (11) TMI 245 - CESTAT BANGALORE
Non-payment/short-payment of service tax - security services to telecom towers - imposition of penalty - Held that: - reliance placed in the case of Ashok Hotel Versus Commissioner of Central Excise [2012 (6) TMI 162 - CESTAT, NEW DELHI], where it was held that sufficient cause has been shown for invoking the provisions of Section 80 of Finance Act, 1994 - penalty cannot be imposed when there is a reasonable cause for short payment of tax, relying in the decision in the case of CCE Vs. Sai Sabareesh Agencies [2017 (9) TMI 1262-CESTAT Bangalore] - appeal dismissed - decided against Revenue.
-
2017 (11) TMI 226 - CESTAT BANGALORE
100% EOU - refund of CENVAT credit - denial on the ground that the appellant is not able to show that these services are used for export of services; and also that one refund claim of July 2006 was filed beyond the period of limitation - Held that: - the services availed by the appellant are eligible for refund keeping in view of various decisions cited by the appellant - refund allowed.
Time limitation - Held that: - the law on this point is also settled by the Hon’ble High Court of Andhra Pradesh in the case of Hyundai Motor India Engineering (P) Ltd. [2016 (7) TMI 1346 - ANDHRA PRADESH HIGH COURT], where it was held that if a refund claim is filed within one year from the date of realization of consideration, should be accepted and allowed - refund allowed.
Appeal allowed - decided in favor of appellant.
....
|
