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Service Tax - Case Laws
Showing 201 to 220 of 222 Records
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2017 (11) TMI 213 - CESTAT BANGALORE
Demand of CENVAT credit wrongly availed with interest - extended period of limitation - suppression of facts - case of appellant is that they are Public Sector Undertaking and suppression cannot be alleged against the Public Sector Undertaking - Held that: - as far as suppression is concerned, the Commissioner (Appeals) has categorically held that there is no suppression in this case and therefore he has given the benefit of Section 80 of the Finance Act to the appellant and it is also a fact that the appellant is a PSU and suppression cannot be alleged against a PSU - once suppression cannot be alleged then extended period of limitation cannot be invoked - demand being time barred is set aside - appeal allowed - decided in favor of appellant.
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2017 (11) TMI 159 - CESTAT KOLKATA
Time Limitation - non-payment of service tax - case of appellant is that the assessee was under the impression and bona fide belief that no Service Tax is payable by them and they did not collect any Service Tax from the services of commission agent provided by them from the service recipients, and there was no malafide intent - Held that: - there is suppression but still I do not find any intention on the part of the assessee for not paying Service Tax as Commission agent under BAS. Business Auxiliary Service has gone into lot of change from 01.07.2003 and since the services provided in the year 2005-07, there was no of confusion in this period about payment of Service Tax on Commission agent service for which they failed to collect/charge Service Tax from the recipient of Service and there cannot be any intention for if they have knowledge about Service tax liability they could have charged and collected it from the manufacturer. In turn the manufacturer would have availed cenvat credit on the service tax so paid as the services of procurement of sale orders for their manufactured goods fell into definition of input services. Hence, by no stretch of imagination, it may be held that this was intention for not paying Service tax - appeal dismissed - decided against Revenue.
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2017 (11) TMI 158 - CESTAT KOLKATA
Levy of service tax - Cargo Handling services - It is submitted that the transportation with incidental loading would be classifiable under Goods Transport Agency service and Service Tax is payable by the client under reverse charge mechanism - Held that: - The expressions loading, unloading, packing or unpacking of cargo in the main part of the definition of Cargo Handling Service, make it clear that the loading, unloading, packing or unpacking of cargo would be leviable to Service Tax under the category of Cargo Handling Service - In the present case, we have seen from the work order dated 30.09.2002 of Mahanadi Coalfields Ld., that the scope of the work is under the caption of Hiring of Pay loader for mechanical transfer of Coal into Railway Wagons at SPUR Siding - these agreements/contracts are for loading of coal into wagons in the railway sidings and loading and unloading are of predominant nature. It would come within the purview of the definition of Cargo Handling Service - demand upheld.
Business Auxiliary Service - appellant submitted that the activities of removal of shale, stone, extraneous materials and breaking clean Coal to (-) 200 mm size are integral part of the mining process - Held that: - the Tribunal in the case of Aryan Energy (P) Ltd. v. Commr. of Cus. & C.Ex., Hyderabad-I [2008 (5) TMI 248 - CESTAT Bangalore] held that the activities relating to Coal mining, washing of coal (benefication) are treated as part of mining activity and mining service came into effect from 01.06.2007 and set aside the demand under the category of Business Auxiliary Service - the processing of the coal in a mine is in a wide range. The activities of removal of the shale, stone, extraneous materials and breaking up of the coal are after the excavation of coal from the mines. Apparently, the processes undertaken by the appellants are for marketability of the coal and part of the mining activities. Hence, the demand of Service Tax under the category of Business Auxiliary Service cannot be sustained - demand withheld.
Site Formation Services - appellant submitted that the excavation and removal of over-burden is an integral part of the mining activity and it is in relation to mining of mineral and taxable under section 65(105)(zzzy) as mining of mineral service w.e.f. 01.06.2007 - Held that: - we find from the works order that the blasting will be done by Department of Explosives and the excavation work will be done by the appellant in the nature of extraction of coal mechanically in benches from available coal at any depth. Therefore, it is an integral part of the mining job and we agree with the submission of the appellant - demand withheld.
Cleaning services - adjudicating authority observed that the appellant was allocated work by Damodar Valley Corporation (DVC) for removal of technological waste from CHP area, DTPS and it would come under cleaning service - Held that: - from the definition of cleaning service under section 65(24b) , it is clear that the cleaning activity would cover cleaning of commercial or industrial building or premises thereof or factory, plant or machinery, tank or Reservoir of such commercial or industrial buildings or premises - t is seen from the letter dated 03.02.2004 of DVC that the appellant was awarded tender for excavation of Ash from different field of Ash Ponds of DTPS, DVC, Waria, Nuisance free transportation and disposal of Ash in abandoned mines of ECL. It appears that the purpose of the tender is for disposal of Ash in the abandoned mines of ECL. The appellant is engaged for transportation and disposal of Ash in the abandoned mines. The letter does not show that the appellant was engaged for cleaning of the premises - demand withheld.
Construction of Residential Complex Service - adjudicating authority observed that the appellant was engaged for the construction of staff dormitory including the work of internal water supply and sanitation at NTPS, DVC, Mejia by National Building Construction Co.Ltd.. It is included within the definition of Residential Complex under section 65(91a) of the Act - Held that: - the appellant constructed a building consisting of 54 individual units of Bachelor accommodation having one room with kitchen space and attached Bathroom in each unit. This fact was not disputed by the appellant. It is not a case of construction of one residential unit. Therefore, it would come within the purview of definition of complex and the demand of Service Tax is justified - demand upheld.
The demand of Service Tax on other issues and imposition of penalties are set aside.
Appeal allowed in part.
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2017 (11) TMI 157 - CESTAT BANGALORE
CENVAT credit - whether the availment of CENVAT credit on common input services which are used for trading as well as rendering taxable output services is correct as also liability of interest on the full credit availed on capital goods in the first year itself? - Held that: - As regards the availment of CENVAT credit on the capital goods, 100% of the amount of Central Excise duty paid, appellant’s availment of 100% of credit of duty paid on capital goods in the first year was an error, as per law appellant is entitled to avail CENVAT credit of balance 50% in the subsequent year - demand set aside.
Eligibility to avail CENVAT credit on FRO crates which are not capital goods - Held that: - FRO crates cannot be considered as capital goods, if they are not considered as capital goods, the explanation given by the appellant before the lower authorities that such crates are used by them for movement of their various components which are used for rendering output service as authorised service station can be considered as inputs. Hence availment of CENVAT credit of the Central Excise duty paid on such FRO crates cannot be disputed and the appeal to that extent contesting the findings has merits and is allowed.
Availment of CENVAT credit on capital goods without proper documents - Held that: - In the case in hand, appellant is not providing any output service in order to avail the input service which has been taxed and charged by the service stations to whom appellant has outsourced the services of rendering free warranty services - credit not allowed.
Appeal allowed in part.
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2017 (11) TMI 156 - CESTAT ALLAHABAD
Levy of service tax - screening of films - whether the appellant is liable to pay service tax on the screening of films in their multiplex? - Held that: - there is no dispute of fact that the appellant have been screening films in their multiplex on Revenue Sharing basis, which is undisputed finding recorded by the ld. Commissioner in the impugned order. Accordingly, we hold that the appellant is not liable to pay Service Tax for Screening of Films and payments to distributors in their theatre - demand set aside.
Renting of immovable property service - Held that: - we allow this appeal by way of remand to the ld. Commissioner, so as to reconcile the payments made by the tenants for the period prior to 30/09/2011. The appellant is also directed to reconcile their accounts and if any amount is payable by them for the period subsequent to 30/09/2011, calculate the same and after depositing the tax, if any, intimate to the Adjudicating Authority.
Appeal allowed in part and part matter on remand.
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2017 (11) TMI 155 - CESTAT CHANDIGARH
Penalty u/s 76 and 78 of FA - reverse charge mechanism - appellant is an exporter and received the services from a commission agent located outside India. In terms of Section 66A of the Finance Act, 1994, the appellant is required to pay the Service Tax under reverse charge mechanism on the services received from outside India but the appellant did not pay Service Tax thereon under reverse charge mechanism - malafide intent or not - invocation of section 80.
Held that: - till the decision of Indian National Shipowners Association vs. UOI [2008 (12) TMI 41 - BOMBAY HIGH COURT], the exporters were under doubt that whether they are liable to pay Service Tax under Section 66A of the Finance Act or not under reverse charge mechanism and the same has been settled by the Hon ble High Court of Bombay in November, 2008. Admittedly, the period in dispute is upto March, 2008.
The benefit of Section 80 of the Finance Act can be extended to the appellant, consequentially, no penalty imposed on the appellant - appeal allowed - decided in favor of appellant.
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2017 (11) TMI 97 - CESTAT BANGALORE
Simultaneous Penalty u/s 76 and 77 - Held that: - the issue is squarely covered in favor of the appellant in the case of Commissioner of Service Tax, Service Tax Commissionerate, Bangalore Versus AK & I Advertising Private Ltd. [2011 (7) TMI 1060 - Karnataka High Court] wherein it has been consistently held that the penalty under provisions under section 76 and 78 cannot be simultaneously imposed - also, the Adjudicating Authority has given the benefit by observing that once penalty under section 78 is imposed, then no separate penalty under section 77 or 76 are mandated - appeal allowed - decided in favor of appellant.
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2017 (11) TMI 96 - CESTAT BANGALORE
Interest and penalty - CENVAT credit availed but not utilized and is reversed - input services - Held that: - This issue has also been decided in favour of the assessee in the case of CCE vs. Strategic Engineering Pvt. Ltd. [2014 (11) TMI 89 - MADRAS HIGH COURT] wherein Hon’ble Madras High Court has held that mere taking of credit would not compel the assessee to pay interest as well as the penalty - interest and penalty set aside - appeal allowed - decided in favor of appellant.
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2017 (11) TMI 95 - CESTAT BANGALORE
Reduction of penalty imposed u/s 78 to 25% - Held that: - the assessee has not paid the service tax for the period from 1/2004 to 6/2007 but on being pointed out by the department, the assessee paid the service tax with interest much before the issue of SCN - the Commissioner (A) has given the benefit by relying upon the decision of Hon’ble High Court of Kerala in the case of CCE vs. Oriental Steel Trunks Agrico Industries [2009 (3) TMI 617 - KERALA HIGH COURT] wherein the Hon’ble High Court has upheld the decision of the Tribunal waiving of the penalty by taking into account the voluntary payment of service tax with interest before issue of SCN - reduction of penalty justified - appeal dismissed - decided against Revenue.
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2017 (11) TMI 94 - CESTAT BANGALORE
Penalty u/s 76 and 77 - delayed payment of service tax - Held that: - There is no dispute as to the fact that appellant had received the consideration and despite that they have not discharged the service tax liability. This reasonable/justifiable cause which has been accepted by the first appellate authority i.e., non-receipt of payment and written off bad debts, in my view cannot be a reasonable cause for setting aside the penalties imposed under Section 76 of the Finance Act, 1994 and to that extent, the impugned order needs to be set aside and the appeal of the Revenue needs to be allowed
Since the penalty imposed under Section 76 is upheld the penalty imposed under Section 77 also needs to be upheld.
CENVAT credit - duty paying documents - credit availed without producing any documents - Held that: - the CENVAT credit was availed of the service tax paid by the Telephone Service providers and the courier services and the address is of the respondent at Belgaum - the finding of the first appellate authority that the respondent is eligible to avail CENVAT credit needs to be accepted and to that extent, the appeal of the Revenue on this point is rejected.
Appeal allowed in part.
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2017 (11) TMI 93 - CESTAT NEW DELHI
CENVAT credit - unregistered premises - Held that: - similar issue decided in the case of M/s Actis Advisers Pvt. Ltd. Vs. CST, Delhi-IV [
2014 (9) TMI 182 - CESTAT NEW DELHI], where it was held that denial of Cenvat Credit on the ground that at the time of receipt of inputs/input services by a output service provider, there was no registration with the Central Excise, is not correct - appeal allowed - decided in favor of appellant.
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2017 (11) TMI 92 - CESTAT NEW DELHI
Time limitation - on subsequent audit for the disputed period, it was detected by the audit wing that the appellant had short paid Service Tax amount of ₹ 57,390/-. By invoking the extended period of limitation, the said amount was confirmed against the appellant - Held that: - Since the activities of the appellants were already in the knowledge of the Department at the time of conducting the first audit and admittedly no discrepancies were noticed by the Audit Wing, it cannot be said that there is element of suppression, fraud etc., on the part of the appellant in defrauding the Government revenue - extended period of limitation cannot be invoked for confirmation of the Service Tax demand - demand set aside - appeal allowed.
Penalty u/s 78 for the period April 2004 to June, 2004 - Held that: - the Department has not specifically alleged regarding non-maintenance of statutory records by the appellant. Since the appellant complied with the statutory requirement of maintenance of proper books of accounts and did not pay the Service Tax due to the reason of financial difficulties, non-payment of such tax amount cannot be a defensible ground for imposition of penalty under Section 78 ibid, which specifically provides that in case of fraud, suppression etc. such provisions can only be invoked - penalty set aside by invoking section 80.
Interest liability - Held that: - proper quantification of the interest amount is required in this case. Therefore, the matter is remanded to the original authority for quantification of the actual interest liability - matter on remand.
Appeal allowed in part and part matter on remand.
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2017 (11) TMI 91 - CESTAT NEW DELHI
Refund claim - N/N. 41/2007 dated 06/10/2007 - input services - denial on the ground that the input services not confirming to the definition of Port service - Held that: - the services namely, Inland Haulage Charges, Freight Outward Charges, B.L. Charges, Terminal Handling Charges etc. were used/utilized by the appellant within the port of export, facilitating exportation of the goods. Since admittedly, the said services were used within the port of export, irrespective of the classification of those services, the same should merit consideration as port service for the purpose of benefit of refund - refund allowed.
With regard to refund claim of the fumigation service, there is agreement between the overseas purchaser and the appellant for undertaking fumigation services in respect of goods exported by the appellant. Since there is agreement between the appellant and the overseas purchaser of goods, the requirement of the Notification has been duly complied with - refund allowed.
Appeal allowed - decided in favor of appellant.
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2017 (11) TMI 39 - CESTAT CHANDIGARH
Refund of service tax - input service - professional indemnity insurance service - denial on the ground of nexus - whether the professional indemnity service used by the assessee, who are providing consultancy in taxation and audit service can be considered as input service in terms of definition of input service in the Cenvat Credit Rules? - Held that: - the issue is no longer res integra and has been decided in the favour of respondent in their own case in CST, Delhi-IV Vs. Ernst and Young Associates LLP [2017 (10) TMI 456 - CESTAT CHANDIGARH] wherein this Tribunal held that the professional indemnity insurance service is an essential ingredient for providing the output service and has direct nexus with the providing of output service - refund allowed - appeal dismissed - decided against Revenue.
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2017 (11) TMI 38 - CESTAT HYDERABAD
Maintainability of appeal - appropriate forum to file appeal - Held that: - the only and entire argument of Ld. Counsel is that they had filed the appeal in the Office of Hyderabad-IV Commissionerate which is wrong Forum, instead of Commissioner of Service Tax (Appeals), Hyderabad - appeal dismissed being not maintainable.
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2017 (11) TMI 37 - CESTAT NEW DELHI
Refund of service tax excess paid - GTA Service - abatement - Section 11B - Held that: - it is evident that the refund claim has been filed by the appellant under Section 11B ibid. The said statutory provision mandates the time limit of one year from the relevant date for filing the refund application - In the present case, as per clause (f) in explanation (B), contained in Section 11B ibid, the relevant date should be construed as the date of payment of duty - Since, no ambiguity arises in plain reading of the provisions of Section 11B ibid, different interpretations can not be placed by the authorities functioning under the statute and are bound to obey the dictates/ provisions contained therein.
In view of the settled position of law and in view of the fact that 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. Therefore, the rejection of refund application by the authorities below is in conformity with the statutory provisions.
The time limit prescribed in Section 11B ibid is strictly applicable for entertaining the refund application, even if the service tax was paid erroneously, due to incorrect interpretations of the statutory provisions or the notifications issued thereunder - appeal dismissed - decided against appellant.
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2017 (11) TMI 36 - CESTAT BANGALORE
Penalty u/s 76 and 78 - tax collected but not paid - tax alongwith interest paid on being pointed out - Held that: - As regards the penalty imposed under Section 76, 77 and 78, the SCN was issued to the appellant on 18.09.2008 when provisions of Section 78 were amended to impose one penalty i.e. either under Section 76 or under Section 78. Since in the case in hand penalty under Section 78 has already been imposed, the penalty imposed by the adjudicating authority under Section 76 of the Finance Act 1994 upheld by the First Appellate Authority is unsustainable and liable to be set aside.
Since the amount of service tax liability stands collected but not deposited with the Government of India, question of invoking Section 80 does not arise. Accordingly the appeal as regards setting aside the penalty under Section 77 and 78 is devoid of merits and liable to be rejected.
Appeal allowed in part.
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2017 (11) TMI 35 - CESTAT NEW DELHI
Quantification of tax liability - security and manpower supply service - Held that: - the quantification as arrived at by the impugned order is to be based on documents maintained by the assessee/appellant and as cross verified by the Jurisdictional officer. Further, various claims made by the assessee/appellant were not discussed for a conclusion.
Adjustment towards service tax already paid - Held that: - the impugned order did not elaborate the basis on which such adjustment is made - In any case for both quantification of tax liability as well as adjustment towards already paid tax basic verification with the connected documents by the Jurisdictional officer is a basic requirement - Since, the issue involved is basically about factual verification and quantification, it is fit and proper to set aside the impugned order and to remand the matter to the Original Authority for a fresh decision.
Appeal allowed by way of remand.
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2017 (11) TMI 34 - CESTAT HYDERABAD
Tour operator service - benefit of abatement - N/N. 25/2012-ST, dt. 20.06.2012 - Held that: - for a vehicle having stage carriage permit like busses owned by the appellants, to operate for private persons/marriage parties under a contract, such basis will then necessarily be required to obtain a contract carriage permit or a special permit as aforesaid. In our view, once such a contract carriage permit or a special permit is obtained, the bus will then no longer has the character of a stage carriage but will instead acquire the colour of a contract carriage/special permit garage - Viewed in this light, the busses of the appellants having become contract carriage or a special permit garage even if for temporary permit to provide them on hire for marriages/pilgrimage etc. this cannot be considered as a stage carriage for that short period and hence cannot then claim to be recovered under the negative list of services by a stage carriage or for that matter covered by the exemptions, provided under section No. 23 of notification 25/2012 since that exemption will not cover contract carriage on hire - demand with interest sustained.
Penalties - Held that: - the matter is one of the unproductive and that the question of taxability on the services was mired in confusion and litigation, the penalties imposed in all these cases are set aside.
Appeal allowed in part.
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2017 (11) TMI 33 - CESTAT HYDERABAD
CENVAT credit - providing of taxable as well as exempt services - non-maintenance of separate accounts for receipt, consumption and inventory of input/input services meant for used in output services as required in terms of Rule 6(2) of the CCR, 2004 - legality of the demand to disallow and recover CENVAT credit on input services exclusively used for exempted output services to the tune of ₹ 91,16,244/- - Held that: - whereas appellants have claimed that they have made payment of entire amount of CENVAT credit availed irregularly and accordingly the violation of Rule 6(1) of the CCR, 2004 has been made good, the adjudicating authority has noted that there is no clarity whether the payment made by the assessee has covered all the input services which are used in exempted output services - having observed that the details given by the appellants are not clear and each transaction is required to be verified, the adjudicating authority nonetheless goes ahead to confirm the disallowance of CENVAT credit of ₹ 91,16,244/- apparently taken in excess and irregularly, without any justification for that decision. In our view, such peremptory confirmation of demand without resolving the very evident confusion in the working thereof, cannot be sustained - matter on remand.
Legality of demand of ₹ 34,20,440/- for the period April 2008 to March 2010 under Rule 6(3) of CCR, 2004 - Held that: - the manner of calculation of 6% or 8% on value of exempted services has not been disputed by the appellant. We also find that with effect from 01.04.2008, Rule 6(3) the CCR, 2004 was specifically amended to bring forth this method of calculation for purposes of Rule 6(3). This being the case, we do not find any infirmity in that portion of the impugned order upholding the demand of ₹ 34,20,440/-, along with interest liability thereon, for the period April 2008 to March 2010.
Penalty - Held that: - the entire issue has emanated out of a dispute between the appellant and the department on the method and manner of calculating the amount of CENVAT credit that can be availed in the situation where both exempted and taxable output services were provided. In these circumstances, we are of the considered opinion that imposition of penalty in this case would be a overkill - penalty set aside.
Appeal allowed in part and part matter on remand.
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