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Service Tax - Case Laws
Showing 41 to 60 of 222 Records
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2017 (11) TMI 1441
Maintainability of appeal - non-compliance with pre-deposit - Section 35F of the CEA, 1944 - Held that: - The Registry has not issued defect notice to the appellants before numbering the appeal to comply with the mandatory pre-deposit. Perhaps Registry was carried away by the wrong mention of figures in column 13 & 14 of the ST-5 Form. The appeal has been erroneously numbered by the Registry and come up for hearing on the petition for condonation of delay - it is fit to give time to the appellant to comply with the mandatory pre-deposit as the appellant was not put to notice about such non-compliance - appellant is directed to comply with the mandatory pre-deposit within two weeks from today and report compliance on 20.09.2017.
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2017 (11) TMI 1435
Penalties - Non-payment of service tax - reverse charge mechanism - commission paid to foreign agent - Business Auxiliary Service - Held that: - the issue appellant is liable to pay service tax under reverse charge mechanism on the commission paid to foreign agent was under much dispute and the litigation had traveled upto the Hon’ble Supreme court when the decision of the Hon’ble Supreme Court has been passed in 2010 whereas the disputed period in this appeal is from 18.4.2006 to April 2007, which is much before the decision of the Hon’ble Apex Court - the penalties imposed are unwarranted and require to be set aside - penalties u/s 76 and 78 set aside - interest and penalty u/s 77 upheld - appeal allowed in part.
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2017 (11) TMI 1430
Franchise service - reverse charge mechanism - whether the appellant satisfy the fourth condition stipulated in the definition of Franchise service as it stood at the relevant period or otherwise? - 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 - for the period from 01.-07.03 to 15.06.2005 the law laid down by the Indian Ship-owners Association [2008 (12) TMI 41 - BOMBAY HIGH COURT], will prevail, since the appellants have paid the franchisee fee to the foreign franchisor, hence no tax liability will arise for that period - appeal allowed - decided in favor of appellant.
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2017 (11) TMI 1408
CENVAT credit - input services - GTA services - auction services - insurance services - rent-a-cab services - outdoor Catering services - Club or Association services - Clearing & Forwarding (C&F) agency services -cargo handling services - insurance services - Held that: - the issue is squarely covered by the decision in the case of Commissioner, Central Excise Versus M/s Manglam Cement Ltd. [2017 (11) TMI 483 - RAJASTHAN HIGH COURT].
Scope of place of removal - Held that: - in the case cited, the Tribunal has recorded a finding that from the verification of bills, it is found that transport charges are required to be borne out by the assessee. Therefore, that issue is also required to be decided in favor of assessee.
Regarding Cargo Handling Services and Insurance Service, reliance placed in the decision of Gujarat High Court in Commissioner of Central Excise and Customs vs. Ultratech Cement Ltd. [2014 (9) TMI 187 - GUJARAT HIGH COURT] and it is held that the issue is answered in favor of assessee.
Regarding Rent a Cab Service, reliance placed in the decision in the case of The Commissioner of Central Excise Service Tax Bengaluru-IV, Versus Ultra Tech Cement Ltd. [2016 (7) TMI 1080 - KARNATAKA HIGH COURT], where it was held that credit is allowed.
Regarding Club and association services, it is clear that it is club activities for going for a sale or any other assigned work. It will be operational, manufacturing activity.
The credit on all services allowed - appeal dismissed - decided against Revenue.
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2017 (11) TMI 1407
Levy of service tax - Passenger Service Fees - other taxes (international taxes) collected by the airlines as part of consideration when the tickets are issued to the passengers - Held that: - the Tribunal had occasion to examine the same issue in respect of various international airlines. As rightly pointed out by the appellants that in the case of M/s Continental Airlines Inc. Versus Commissioner of Service Tax, New Delhi [2015 (7) TMI 1079 - CESTAT NEW DELHI], where the Tribunal held against the inclusion of these charges in the taxable value for air travel service by the appellants - service tax cannot be levied.
Includibility - other taxes (international taxes) collected by the airlines as part of consideration when the tickets are issued to the passengers - Held that: - while upholding the issue on merit regarding tax liability of fuel surcharge and insurance surcharge we hold that the demands are to be restricted to the normal period of limitation only - penalties set aside.
Appeal allowed in part.
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2017 (11) TMI 1406
Business auxiliary services - process of operating the lottery business which includes promotion, marketing and all auxiliary and incidental support services like selling, billing, collection, remitting, evaluation of prospective customers etc - Held that: - The fact that appellants are engaged in promotion and marketing of lottery of the State Governments cannot be disputed. Services in relation to promotion or marketing of a service of client is liable to tax. We are not able to accept the proposition of the appellant that the State Governments are not their client. The terms of the agreement are clear that the State Governments authorized the appellants to organize and promote the lotteries. The nature of consideration that will accrue to the appellant for their services will not by itself decide the tax liability. The consideration is determined by mutual consent in terms of the agreement. In the present case on the overall receipts by sale of lottery, the State Government gets certain percentage as their share. For organizing, promoting and marketing the lottery the appellants get the consideration (retained amount) as per the terms of the agreement - tax liability upheld.
Valuation - Held that: - the provisions of Section 67 (2) are very clear to the effect that gross amount charged by the service provider should be inclusive of service tax payable, to consider such amount for backward calculation. In the absence of any evidence to the effect that the amount of consideration now taken up for tax liability is inclusive of service tax in terms of an arrangement or documentation, we note that the findings of the Original Authority is correct in this regard.
Penalties - Held that: - the Original Authority has imposed penalty only under Section 76 and 77 and not under Section 78. On perusal of the impugned order, we find no reason to interfere with the findings.
Appeal dismissed - decided against appellant.
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2017 (11) TMI 1405
Reverse charge mechanism - IPR Services - includibility of expenditures - Rule 5 of Service Tax Valuation Rules - Held that: - The appellants are not incurring any extra cost or expense in receiving such service. If at all, the expenses are incurred by the holding company which in any case fixed the consideration for taxable service provided to the appellant. In terms of Rule 7 of Valuation Rules, it is clear that in respect of taxable services provided form outside India the value shall be actual consideration charged for the services provided - In the present case, there is no allegation that the appellants have not discharged service tax on actual consideration charged by the service provider - there is no justification to invoke Rule 5 to hold that the appellants short paid Service Tax on reverse charge basis.
Outstanding consideration to be paid by Holding Company - effect of amendment - Held that: - the amendment which brought in a deeming provision for transaction between associate enterprises is applicable from the that date only - the debit entries made prior to 10.05.2008 and shown outstanding on that date cannot be subjected to Service Tax on reverse charge basis based on the explanation, which was introduced under Rule 6 (1) of the Service Tax Rules, 1994 w.e.f. 10.05.2008.
Appeal allowed - decided in favor of appellant.
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2017 (11) TMI 1404
Valuation - construction services - exclusion of the value of the free supply materials - composite contracts - Held that: - On examining the scope of Section 67 as well as the said explanation of the N/N. 15/2004-ST., the Tribunal in the case of Bhayana Builders (P) Ltd. [2013 (9) TMI 294 - CESTAT NEW DELHI (LB)] concluded that the items supplied free of costs by the recipient of service cannot be considered for addition in the value to arrive at the value for tax purposes - subject to verification of quantification of free supplied materials, based on the documents to be submitted by the appellant/assessee, such exclusion is to be considered and allowed.
Penalties - Held that: - since the issue involved was with reference to multiple contracts of different nature, the case was examined and detailed order was passed by the Original Authority, accepting some of the contention of the appellant and rejecting the others - this is a fit case for waiver of penalty by invoking Section 80 - penalties set aside.
Personal use of the building by the recipient of service - Held that: - similar set of facts decided in the case of KHURANA ENGINEERING LTD. Versus COMMR. OF C. EX., AHMEDABAD [2010 (11) TMI 81 - CESTAT, AHMEDABAD], where it was held that service provided by the appellant is to be treated as service provided to Govt. of India directly and end use of the residential complex by Govt. of India is covered by the definition “Personal Use” in the explanation to definition of residential complex service.
Eligibility of the appellant /assessee for composition scheme - Held that: - It is clear that the facts of the present case with reference to each one of the taxable contract are to be verified regarding the period involved as well as the facts of payment of concessional duty in respect of the whole of the contract etc - matter requires remand.
Appeal allowed by way of remand.
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2017 (11) TMI 1403
Refund of unutilized CENVAT credit - input services - advertisement service - renting of immovable of property service for car parking - cafeteria; health and fitness service - event management service - development and supply of content service - legal consultancy service - interior design service - video production agency service - Held that: - except for health and fitness service, with regard to all other services for the subsequent period, it has been held by the authorities below that these are input services and refund claims were sanctioned. Therefore, Revenue cannot take contrary stand to deny CENVAT credit when they hold that the services in question are input services - refund allowed.
Health and fitness service - Held that: - Admittedly, these services have been received by the appellant in the course of their business of providing output service, therefore for that period, the appellant is entitled to avail CENVAT credit on health and fitness service - refund allowed.
Appeal allowed - decided in favor of appellant.
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2017 (11) TMI 1402
Refund claim - amount paid under protest - time limitation - Held that: - the challans furnished by the respondent clearly reflect that the payment was made under protest and once the payment is made under protest, the time limit under Section 11B does not apply - when the amount that the assessee has claimed is not payable to the Government, the lower authority ought to have discussed the issue on merits rather than rejecting the sole issue whether the payment is made under protest - appeal dismissed - decided against Revenue.
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2017 (11) TMI 1401
Penalty u/s 76 and 78 - in a case where the assessee has paid entire amount of service tax along with interest and 25 % of service tax as penalty within 3 days of the issuance of the show cause notice, whether the proceedings can be concluded under Section 73(3) of the Finance Act, 1994 or not? - Held that: - it is a clear mandate of law that if a assessee paid entire amount of service tax alongwith interest and 25% of service tax as penalty within 30 days of the issuance of the show cause notice the proceedings shall be concluded - As appellant has compiled with the provisions, therefore, proceedings against the appellant is not sustainable - appeal allowed - decided in favor of appellant.
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2017 (11) TMI 1400
Business Auxiliary services - Banking and other financial services - deposit processing services - insurance policy processing services - accounting services - levy of service tax - Held that: - it is incorrect to hold that the activities of deposit processing, insurance policy processing and accounting services would fall within the banking and other financial services - demand set aside.
However, the issuance of power plus card for purchase of fuel, in our view, being issuance of credit card or lending would fall within the ambit of banking and other financial services. On these activities, the appellants are liable to pay service tax - demand upheld.
Penalty u/s 76 and 78 - Held that: - Since we have already held that the appellant is not liable to pay service tax on the above such services, except for power plus cards for purchase of fuel, we are of the view that the imposition of penalties is unwarranted and requires to be set aside.
Appeal allowed in part.
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2017 (11) TMI 1399
Works contract - Construction of Industrial or Commercial Complex Service - Held that: - the period involved in the case is from 10.9.2004 to 31.3.2007 - the issue being a works contract whether subject to service tax prior to 1.6.2007 has been settled by the judgment of the Hon’ble Supreme Court in the case of Commissioner Vs. Larsen & Toubro Ltd. [2015 (8) TMI 749 - SUPREME COURT], where it was held that Works contract were not chargeable to service tax prior to 1.6.2007 - appeal allowed - decided in favor of appellant.
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2017 (11) TMI 1398
Business Auxiliary Services - consideration received from various banking / non-banking financial institutions for the services provided for business promotion / marketing services - extended period of limitation - Held that: - there was much confusion whether such services are taxable or not, the issue had traveled upto the Larger Bench taking and the matter reached finality in the order dated 12.9.2013 of the Larger Bench - the department yet did not issue show cause notice proximate to that decision and within the period of limitation.
The proceedings initiated invoking extended period is hit by limitation - appeal allowed - decided in favor of appellant.
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2017 (11) TMI 1397
CENVAT credit - capital goods - depreciation - Rule 4(4) of the CCR, 2004 - Held that: - this case needs to be remanded back to the original authority to verify whether the appellant has actually taken the depreciation under Section 32 of the Income Tax Act or not becuase the appellant has submitted that it is only the irregularity crept in accounting of the credit in the concerned book which was purely unintentional and the appellant has not taken the double benefit - appeal allowed by way of remand.
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2017 (11) TMI 1396
Principles of natural justice - Service Tax on the reimbursement/payments received from the clients - pure agent - Held that: - the Ld. Commissioner (Appeals) has not dealt with all the issues raised by the appellants and has given no finding on various contentions raised by the appellants - The agreements submitted by the appellants in support of their contentions also do not appear to have been examined by the Ld. Commissioner (Appeals). There is no finding also on the appellants contentions that they are receiving advances at the rate of 10% of their provisional fees for incurring the expenses and the reimbursement expenditure is not fixed at the rate of 10% of their fees and that they receiving the expenses on the actual basis only.
Considering that significant contentions made by the appellants in their submissions before the Ld. Commissioner (Appeals) have not been dealt at all by the first appellate authority, the matter needs to be re-examined by the Ld. Commissioner (Appeals) again - appeal allwoed by way of remand.
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2017 (11) TMI 1335
Penalty - Reverse charge mechanism - Fees for Overseas Borrowing paid to several non-resident financial institutions - Held that: - Goodness and precocious conduct of the respondent Corporation in making payment has to be appreciated and not condemned - The respondent-Corporation, to show their bona fides, had paid service tax even for the period prior to 19th April, 2006. Non-contest in the proceedings under Section 73 cannot be used as a ground or reason to establish and show that requirements of Section 78 are satisfied - penalty set aside - appeal dismissed - decided against Revenue.
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2017 (11) TMI 1334
Composite Works Contract - case of Revenue is that the nature of contract has to be examined for a specific determination whether they are really falling under composite works contract - tax liability post 01/06/2007 under works contract service, eligibility of the appellant/assessee to pay tax after availing the composition scheme is under dispute - Held that: - the facts in respect of each one of the contracts now under contest requires verification with original documents - matter on remand for tax liability to be requantified for the period after 01/06/2007 on satisfactory verification of the documents regarding the claim of the appellant /assessee on classification of services under works contract service and with reference to eligibility of the appellant/assessee to pay service tax after availing the concessional rate under composition scheme for works contract service - appeal allowed by way of remand.
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2017 (11) TMI 1333
Valuation - includibility - finance charges - additional finance charges - Fleet Card issued by the appellant to the customer, who availed vehicle loan facilities from them, is for facilitating the customers to procure fuel from the outlets of petroleum companies, with whom the appellant-assessee had prior arrangement - claim of appellant is that these charges are nothing but interest - Held that: - We perused the account statement of the appellant-assessee of one of the months during the material time. In May, 2009, the statement shows the amount charged by the appellant-assessee is exclusive of interest and other charges. However, interest for the month is also shown separately. Hence, the claim that "finance charge" and "additional finance charge" are interest is not correct. Such transaction between the appellant-assessee and the customer being not one of lending loan, the question of exclusion of Interest on Loan in terms of Board's Circular dated 17.09.2004 does not arise.
In terms of agreement between the oil companies and the appellant-assessee, it is clear that the Fleet Card holder enjoys various privileges - the "finance charge" and "additional finance charge" are to form part of taxable value for taxable service of BOFS/Credit Card Services during the material period.
Extended period of limitation - penalty - Held that: - the case is of interpretation issue - The impugned order did not bring out sustainable reasons for invoking willful suppression, mis-statement etc., against the appellant-assessee - extended period cannot be invoked - penalty also set aside.
Appeal allowed in part.
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2017 (11) TMI 1332
Manpower Recruitment and Supply services - Short payment of service tax - case of Appellants is that they had failed to discharge service tax liability only because the customers failed to reimburse the service tax which resulted in heavy financial burden to the appellants - extended period of limitation - penalty - Held that: - taking into consideration of the fact that the 4 appellant was to discharge the service tax on the reimbursable amount also namely salaries etc., we are of the considered view that the penalty imposed is unwarranted - penalties set aside.
The matter s remitted to the adjudicating authority for decision afresh - appeal allowed by way of remand.
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