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Service Tax - Case Laws
Showing 21 to 40 of 222 Records
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2017 (11) TMI 1576
Valuation - includibility - Revenue is of the view that the free services provided by M/s. Bharti Airtell and the services for which M/s. Bharti Airtell have charged certain amounts from the applicant are includable in the assessable value of the services provided by the applicant - difference of opinion - Held that: - As there are contrary views and difference of opinion between the Members, therefore, the matter be placed before the Hon'ble President to refer the matter to the third member to resolve the issue: - Whether the appellants be granted full waiver of pre-deposit of Service Tax, fine and penalty for stay of operation of impugned order as held by Member (Judicial) - matter referred to Third Member.
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2017 (11) TMI 1575
Reverse Charge Mechanism - royalty - whether the appellant is liable to pay service tax under the heading Intellectual Property Service for the services rendered by their foreign counterpart M/s. Delphi Technologies Inc. USA? - Held that: - the period involved is prior to 18.4.2006 on which date Section 66A came to be introduced in the Finance Act, 1994 - The issue whether the assesse is liable to pay service tax under reverse charge mechanism on royalty paid to foreign counterpart stands settled in favour of the assessees in the judgment of Indian National Shipowners Association [2008 (12) TMI 41 - BOMBAY HIGH COURT], where it was held that Before insertion of section 66A with effect from 18-4-2006, there was no authority to levy service tax on Import of service. Explanation below section 65(105) did not give any authority to levy service tax on import of services - appeal allowed - decided in favor of appellant.
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2017 (11) TMI 1574
Valuation - includibility - reimbursable expenses - charges collected under the heads A.R-4 expenses - DBK Charges - DEEC Endorsement Charges etc. - whether reimbursable expenses are includible in taxable value or not? - Held that: - the issue is settled in the case of Commissioner of Service Tax Versus M/s. Sangamitra Services Agency [2013 (7) TMI 862 - MADRAS HIGH COURT], where it was held that Various expenditure includible in the taxable value of Carrying and Forwarding service were reimbursed by the principals on the basis of actuals - the demand on reimbursable expenses is neither legal nor proper and requires to be set aside. The amount, if any, collected over and above the actual would not fall under CHA Services - demand unsustainable - decided in favor of appellant.
Business Auxiliary Services - demand on incentive received from Shipping Liner - Held that: - the issue decided in the case of M/s. Indo Lloyd Freight Systems Pvt. Ltd. Versus Commissioner of Service Tax, Chennai [2017 (8) TMI 400 - CESTAT CHENNAI], where it was held that the activity of the appellant as a custom house agent is to provide services to importers/exporters and the disputed activity was only a facility arranged by them to their clients. The appellant has no obligation to arrange transport of cargo through a particular shipping liner. Therefore, the amount received cannot fall within the category of commission so as to be subjected to levy of service tax - demand under Business Auxiliary Services set aside.
The learned counsel for appellant has also put forward the grievance that the Commissioner has not taken note of the amounts paid by the appellant - That appellant would be able to establish with documents that entire liability has been discharged before the issuance of show-cause notice - matter is remanded for such re-examination.
Penalty u/s 76 and 78 - Held that: - the appellant has discharged substantial portion of the demand even prior to issuance of show-cause notice - though it is alleged that appellant has suppressed facts with intent to evade payment of tax, there is no specific evidence to prove the same - penalties set aside.
Appeal allowed in part and part matter on remand.
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2017 (11) TMI 1573
Valuation- includibility - reimbursable amounts which have been collected on the items like Security Guards, Videography Police, Escorts, DM/CMM charges etc - Whether the demand has to be upheld by not excluding the reimbursable expenses from the value of the services as held by Ld. Member (Technical) or the same have to be excluded subject to verification of the agreement between the appellant and the banks and the invoices etc. as held by ld. Member (Judicial) - extended period of limitation - difference of opinion - majority decision.
Held that: - the decision of the Hon‟ble Delhi High Court in Intercontinental Consultants & Technocrafts Pvt. Ltd. [2012 (12) TMI 150 - DELHI HIGH COURT] has not been considered, before a decision is arrived at by the ld. Member (T). The Hon‟ble Delhi High Court held that the rule 5 (1) of the Valuation Rules 2006 is ultra virus of the substantive legal provisions of Section 67 and 68 of Finance Act, 1994. The High Court was dealing with similar reimburseable expenditure regarding travel or accommodation - The facts of the present case along with connected documentary evidences are to be examined - the findings of the ld. Member (J) with reference to remand of the matter to the Original Authority is correct - the amounts claimed to be re-imburseable expenses can be excluded from the assessable value subject to verification of the agreements between the appellant and the banks and the supporting documents like invoices, etc to be submitted by the appellant.
Time limitation - Whether the extended period of limitation has been rightly invoked as held by ld. Member (Technical) or the demand is barred by limitation as held by ld. Member (Judicial ) and as such, the appeal is to be allowed in toto, on the said disputed issue? - Held that: - Admittedly, the appellants maintained records of all the expenses and the present demand was based on such records. In such situation, I find that the demand cannot be invoked by alleging willful misstatement, fraud and intention to evade payment of tax. Here, the extended period was invoked on the ground that the information was not disclosed to the Department. When there is a bonafdide doubt based on the interpretation of the legal provisions, the question of suppression and willful mis-statement cannot be sustained. - The extended period of limitation cannot be sustained in the facts and circumstances of the present case.
Consequent on the findings by the 3rd Member on reference, in terms of majority view, the impugned order is set-aside and appeal is allowed with consequential relief on the point of time bar.
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2017 (11) TMI 1572
Valuation- includibility - reimbursable expenses incurred for producing the programme - pure agent - Held that: - In the present case the respondent after producing the programme on their own transferred the copyright in the said programme to M/s Sanvedana Entertainment and M/s Percept Picture Company Limited. Accordingly the respondent was not appointed as a pure agent to incur the expenses on behalf of the M/s Sanvedana Entertainment and M/s Percept Picture Company Limited - the adjudicating authority shall decide afresh all other aspects raised in the show-cause notice and also raised by the respondent which were not considered at all - appeal allowed by way of remand.
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2017 (11) TMI 1571
Classification of services - rent a cab service or Supply of tangible goods service? - Held that: - The essential criterion specified for classification of the service under the supply of tangible goods is that goods should be supplied without transferring the right of possession and effective control - As per the facts of the present case, the vehicles during the course of service remain under the ownership of respondent and are given to the clients only for transportation of passengers - appeal dismissed - decided against Revenue.
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2017 (11) TMI 1522
Demand of service tax - adjudication of case after the Scheme of Arrangement - sick unit - Held that: - This Court does not wish to express any opinion at this juncture, as the first respondent is yet to adjudicate the case. The first respondent, having issued the impugned demand, has to consider the petitioner's objections and pass an order and it is open to the petitioner to prefer an appeal. On the other hand, if the first respondent is convinced on the legal issue raised by the petitioner, it may even lead to dropping of proceedings. Therefore, necessarily, there should be an adjudication.
The prayer sought for by the petitioner to quash the impugned show cause notice cannot be granted, as it is premature - writ petition is dismissed as premature.
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2017 (11) TMI 1521
Restoration of application for stay - Held that: - While deciding the application for stay, the Appellate Tribunal always could have gone into the question whether prima facie there is any merit in the appeal. However, from the impugned order, we find that the Appellate Tribunal has recorded a final finding on merits of the appeal by holding that the appeal was devoid of any merit. In fact, the Appellate Tribunal proceeded to dismiss the appeal and, consequently, the stay application was dismissed.
The approach of the Appellate Tribunal is completely erroneous. What was heard before the Appellate Tribunal was the application for stay. There was no occasion for the Appellate Tribunal to go into the merits and decide the appeal itself by holding that it was devoid of any merits.
The stay application will have to be restored to the file of the Tribunal.
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2017 (11) TMI 1497
Consultancy Engineering service - sub-consultancy, whether exempt or not? - extended period of limitation - Held that: - the appellant were engaged in providing consulting engineer service and claimed sub-consultancy work as exempted service - if such is the situation, the case of mis-representation etc. to invoke extended period is not tenable. Even otherwise, the appellants did declare all the considerations received by them in their statutory returns filed with the Department - demand for extended period cannot be sustained - penalty set aside - appeal allowed - decided in favor of appellant.
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2017 (11) TMI 1491
Business Auxiliary services - discount (commission) - 1% additional discount is over and above the normal trade discount - the decision in the case of M/s. IRIS Computers Ltd. Versus Commissioner of Service Tax, Jaipur [2017 (9) TMI 233 - CESTAT NEW DELHI] contested - Held that: - delay condoned - appeal admitted.
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2017 (11) TMI 1482
Refund of service tax paid - appellant was of the view that it is not providing the management consultancy service and accordingly, is not liable to pay Service Tax under that category of such taxable service - denial of claim on the ground of time limitation - Section 11B of the Central Excise Act, 1944 - Held that: - It is an admitted fact on record that the appellant got itself registered with the Service Tax Department and deposited the Service Tax for providing the management consultancy service. Since the refund application was filed by the appellant and entertained by the Department under the provisions of Section 11B ibid, the time limit provided there-under are strictly applicable for consideration of such application.
In this case, the refund application was filed on 18.05.2009, claiming refund of Service Tax paid during the period July 2008 to December, 2008 - Section 11B in unambiguous terms provides that refund claim has to be filed within one year from the date of payment of duty (Service Tax).
The refund application was filed and decided under Section 11B ibid, the time limit prescribed therein should be strictly followed in entertaining the refund application. Since the adjudicating /appellate authorities are created under the statute, are duty bound to obey the provisions contained therein - rejection of refund application by the authorities below is in conformity with the statutory provisions.
Appeal dismissed - decided against appellant.
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2017 (11) TMI 1468
Abatement - N/N. 15/2004-ST or 01/2006-ST dated 01.03.2006 - denial on the ground that appellant availed CENVAT credit - Held that: - Admittedly, the appellants availed credit on input services. That will bar them from availing said abatement. However, reversal of credit already availed will amount to non-availment of credit - abatement allowed.
Reversal of credit - whether or not the appellants are covered by the said ratio of the decision in the case of CHANDRAPUR MAGNET WIRES (P) LTD. Versus COLLECTOR OF C. EXCISE, NAGPUR [1995 (12) TMI 72 - SUPREME COURT OF INDIA], with regard to the reversal of credit - Held that: - The proportionate calculation of the input service credit attributable to the taxable output service of “commercial or industrial construction” can be categorically established from such records - in case of reversal of such proportionate credit attributable to commercial or industrial construction service then the appellants eligibility to the abatement is to be upheld - the appellant is covered by the ratio of the above case.
Whether or not reversal of proportionate credit will satisfy the ratio with reference to non-availment of credit which is a condition for abatement? - Held that: - It is clear that reversal of credit even to a proportionate extent attributable to a particular output service will satisfy the condition of Notification providing for exemption or abatement. The condition that no credit of tax paid on the input service will stand fulfilled if reversal of already taken credit is done.
Appeal allowed - decided in favor of appellant.
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2017 (11) TMI 1467
CENVAT credit - input services - Warehouse Charges - Taxi Charges - Bank Guarantee - Insurance charges - Commission charges - period of dispute involved in this case is from 2006-07 to 2011-12 - Held that: - the services used by the provider of taxable service for providing the output service are considered as input service for the purpose of the benefit of cenvat credit. Further under the un-amended definition of input service (effective upto 28.02.2011), the phrase “activities relating to business” was specifically finding place in such definition clause - Since the appellant has availed the disputed services for accomplishing the business activities, the cenvat benefit under the inclusion part of the definition is available to the appellant for consideration as input service on the disputed services.
Even under the amended definition of input service w.e.f 01.03.2011, the appellant will also be eligible for cenvat credit benefit on the disputed service, on the ground that the said services are not falling under the excluded category as provided under clause (A), (B) and (C) of the definition of input service.
Appeal allowed - decided in favor of appellant.
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2017 (11) TMI 1466
Time Limitation - non-payment of service tax - cable operator service - Whether in this case, longer limitation period under proviso to Section 73 (1) of the Finance Act, 1994 is applicable for demand of service tax for the period from 10.09.2004 to 15.06.2005 raised by show cause notice dated 21.08.2007 and whether penalty is imposable on the Respondent under Section 78 of the Finance Act, 1994? - difference of opinion - majority order.
Held that: - where there is no suppression, the pre-condition for applicability of proviso to Section 73 (1) ibid cannot be said to be met and hence, extended period of limitation contemplated therein cannot be invoked - Since, the demand against the appellant was confirmed under the proviso to Section 73 (1) ibid, which is not maintainable, there is no requirement of any further analysis with regard to the revenue neutrality situation - longer period of limitation cannot be invoked for confirmation of the adjudged demand - appeal dismissed - decided against Revenue.
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2017 (11) TMI 1464
Valuation - includibility - whether the value of diesel supplied free by the customer is required to be included for purposes of levy of service tax? - Held that: - the value of free supplies by the service receiver to the service provider is not includible in the „gross amount charged‟ by the service provider from the service receiver - there is no justification for adding the value of free supply diesel for purposes of levy of service tax.
Site formation and excavation service - levy of service tax - assessee’s contract with M/s ACL for supply and deployment of earth moving equipments such as excavators, bulldozers etc for use in mining work - Held that: - the SCN has referred to the various contracts executed by the assessee with M/s ACL. The adjudicating authority has also recorded the nature of activities required to be carried out and concluded that the contract was composite but the essential character of the contract is that of supply of tangible goods service and not site formation service - the service rendered to M/s ACL will be liable for service tax under the category of supply of tangible goods, that too only w.e.f. 16.5.2008 - decided against Revenue.
Cargo Handling Service - case of Revenue is that nature of activity carried out in the mining area of ACL was transportation of limestone and rejects with the help of dippers and dumpers - Held that: - The Tribunal in the case of Sainik Mining and Allied Services Vs. CCE [2007 (11) TMI 90 - CESTAT, KOLKATA] has held that Activity of mechanical transfer of coal from the coal face to tippers and subsequent transportation of the coal within the mining area, does not come under the purview of cargo handing service - demand withheld - decided against Revenue.
Appeal allowed - decided in favor of appellant.
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2017 (11) TMI 1463
Classification of services - Cargo Handling service or works contract? - respondent-assessee are engaged in providing a range of services to NMDC with reference to mining, transportation, loading of iron ore for NMDC in their mines - Held that: - it is clear that the respondent-assessee are engaged in mechanised excavation, loading and transportation of iron ore fines in tippers. The operation is mechanised and the nature of loading activities and the distance of transport has also been mentioned in the work orders - the Tribunal in the case of Kanak Khaniz Udyog vs. CCE, Jaipur-II [2017 (3) TMI 1365 - CESTAT NEW DELHI] and in Hazaribagh Mining & Engg. Pvt. Ltd. vs CCE.,C&ST, BBSR-I [2016 (12) TMI 1131 - CESTAT, KOLKATA] held that the tax liabilities in these type of activities will arise only from 01.06.2007 under mining services and cannot be taxed under Cargo Handling Services - appeal allowed - decided in favor of appellant.
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2017 (11) TMI 1462
Excisability - sugar syrup - captive consumption - Whether sugar syrup made by the appellant for captive use in the manufacture of exempted biscuits is chargeable to Central Excise duty? - Held that: - identical issue has came up before the Tribunal in the case of Rishi Bakers Pvt. Ltd. vs. CCE, Kanpur [2015 (4) TMI 893 - CESTAT NEW DELHI], where it was held that Since the sugar syrup is used in the manufacture of the exempted biscuits, the benefit of N/N. 67/95-CE would not be available - sugar syrup is not subject to excise duty - demand set aside.
Excisability/marketability - special cream - captive consumption in manufacture of biscuits - Held that: - test i.e. marketability has not been examined by the lower authority in the instant case. When it is so, then we set aside the impugned order regarding the cream and remand the matter back to the adjudicating authority to examine the test of marketability of the cream and decide the matter denovo - matter on remand.
Appeal allowed in part and part matter on remand.
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2017 (11) TMI 1448
CENVAT credit - outdoor catering services after 01.04.2011 - Held that: - the Cenvat credit on outdoor catering services pertains to the period prior to 01.04.2011 but the appellant has availed the credit after 01.04.2011 - the Board circular dated 29.04.2011 clarifies that the credit on such services shall be available when the services have been completed before 01.04.2011. This means that where the services have been fully received prior to 01.04.2011, the credit of service tax paid on the services is available even though payment was made on or before 01.04.2011 - appeal allowed - decided in favor of appellant.
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2017 (11) TMI 1447
Penalty u/s 77 and 78 - alleged non-payment of service tax - suppression of facts - Held that: - the department has not produced any evidence which shows that there is suppression of material fact by the assessee with intent to evade payment of service tax - penalty set aside - appeal dismissed - decided against Revenue.
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2017 (11) TMI 1442
Penalty u/s 78 of FA - Works contract service - composite contract - case of appellant is that they had disputes with the contractors regarding payments and they were in many arbitration proceedings, which created serious difficulty in discharging Service Tax liabilities in a timely manner - Held that: - this is a fit case for invoking provisions of Section 80 for waiving aside the penalty - penalty set aside - appeal allowed - decided in favor of appellant.
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