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Service Tax - Case Laws
Showing 61 to 80 of 222 Records
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2017 (11) TMI 1296
Business Auxiliary Services - Revenue proceeded against the appellant to hold that such consideration received from Bank of Punjab shall be liable to service tax under the category of Business Auxiliary Service in terms of Section 65 (19) of the Finance Act, 1994 - Held that: - The Bank of Punjab’s agreement with the appellant clearly stipulates the conditions and the scope of activities of the appellant. A reading of the agreement makes it clear that the appellant is engaged as an extended facility of Bank of Punjab though only for a limited purpose of accepting foreign exchange at the rate specified by the said bank. All the foreign exchange received by the appellant are to be transmitted without any change to the Bank of Punjab who will pay certain consideration for this service - this activity is nothing but promotion of business of Bank of Punjab and also acting as an extended representative of the bank for a limited purpose and getting commission for the same - demand upheld for normal period.
Extended period of limitation - penalties - Held that: - appellants acted in pursuance of an agreement in buying foreign exchange from the customers. The title of the agreement stating the same as franchisee agreement and the nature of business in dealing with foreign exchange might have given a bonafide reason for the appellant regarding their non-liability to service tax for this activity - extended period of limitation not invokable - penalties set aside.
Appeal allowed in part.
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2017 (11) TMI 1291
CENVAT credit - subsidiary of M/s Gail India Ltd. - Revenue's contention is that in as much as the appellant was not undertaking any taxable service by transportation of goods through pipelines, the availment of credit by them was not justified, whereas case of appellant is that they were paying service tax on the activity of transportation of the said gas through pipelines and as such the entire credit availed by them stands utilized - whether the appellant is entitled to avail the credit of service tax paid by M/s Gail India Ltd. or not? - Held that: - Such credit stands utilized by the appellant for payment of service tax on their activity of transportation even though there was no requirement to do so. By paying service tax, the appellant has utilized the entire Cenvat Credit and as such it can be concluded that the credit paid by the assessee stands reversed. In such a scenario, confirmation of the same for the second time is neither justified nor warranted.
There is no warrant for confirmation of Cenvat Credit availed and already utilized by the appellant for payment of service tax on their activity of transportation of gas through pipelines - appeal allowed - decided in favor of appellant.
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2017 (11) TMI 1279
Cargo Handling services - non-payment of service tax - Held that: - It is clear that the assessee/appellant are engaged in unloading iron ore from railway racks at Bilaspur siding, loading of such iron ore into the trucks, transportation upto the factory and thereafter unloading the said iron ore in the premises of the client’s factories - Considering the quantification of consideration received alongwith the quantum of cargo handled, we are of the view that the assessee/appellant are essentially involved in cargo handling service and the transport being incidental to said activities - It is also noted that the assessee/ appellant did collect service tax from various clients under cargo handling service and upon enquiry by the Revenue, deposited an amount of ₹ 9.98 lakhs under the said category. It would appear that the assessee/appellant treated the said services as cargo handling services and are contesting the tax liability only after the proceedings have been initiated by the Revenue.
Extended period of limitation - Held that: - appellant have collected service tax under Cargo Handling Service from various clients and deposited the same upon initiation of enquiry by the Revenue - it is not open to the assessee/appellant to contest the demand for extended period on the ground of their bonafideness.
Penalties - Held that: - the impugned order fell in error in stating that simultaneous penalties cannot be imposed on the assessee/appellant for the same case - the impugned order is legally not sustainable with reference to non-imposition of penalty under Section 76.
Appeal allowed - decided in favor of Revenue.
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2017 (11) TMI 1277
Business Auxiliary services - commission and incentive received for business brought in by the appellant for transport of cargo - Held that: - the commission agents are shown in the inclusive part of the definition such agents are not to be treated as only involved in promotion and marketing. Though commission agents do end up promoting or marketing the services the arrangement and manner of payment of consideration decides their scope of activities and brings them under the category of commission agent - In the present case, there is no sale or purchase of goods on behalf of clients. It is the service which the appellant are dealing with - the appellants are liable to service tax under BAS w.e.f. 16/06/2005 only.
Regarding the contention of the appellant that incentives are to be treated separately, we note that the same is not a tenable position.
Valuation - reimbursement of expenses on actual basis - Held that: - When the expenditure is incurred on behalf of the client and reimbursed on actual basis the same are to be excluded from the taxable value.
Penalties - Held that: - this is a fit case for invoking provision of Section 80 for setting aside the penalty on appellant - penalties set aside.
Appeal allowed in part.
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2017 (11) TMI 1276
Valuation - inclusion of certain concession in the fees by way of their scholarship scheme - Revenue entertained a view that the difference between the actual tuition fee paid by these candidates who were offered concession and the normal fee paid by the other candidates should be considered as a taxable value by applying Rule 3 of Service Tax Valuation Rules, 2006 - Section 67 - Held that: - In terms of Section 67, the service tax liability will arise on gross value - there are no reason to consider the concessional portion of fee which is as per the pre-declared publicity material, as part of non-monetary consideration requiring addition to the monetary consideration to arrive at the gross value - there is nothing to hold that the scheme is other than a bonafide practice - valuation rules cannot be invoked - appeal allowed - decided in favor of appellant.
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2017 (11) TMI 1271
Commercial Training or Coaching Services - view of the Revenue is that the course, B.Sc (Hon.) in Business and Management Studies, conducted by the appellant asessee is not recognized by any statutory authority in India - scope of service.
Held that: - degree or diplomas issued by foreign universities are examined for recognition for further education in India or for employment. It is clear that the courses conducted by the appellant assessee results in award of degree of B.Sc (Hon.) by the Bradford University. The said university is an accredited university by the Association of Common Wealth Universities - The Ministry of Human Resource Development, Govt. of India, clarified that AIU is entrusted with recognition of degrees or diplomas awarded by accredited universities in India and abroad for the purpose of admission to higher courses at Indian Universities.
The Tribunal while examining a similar dispute in the case of M/s ITM International Pvt Ltd [2017 (11) TMI 1230 - CESTAT NEW DELHI (LB)] held that Ministry of HRD vide Notification dated 13.03.1995 stated that the Govt. of India had decided that those foreign qualifications which are recognized/equated by the AIU are treated as recognized for the purpose of employment services under the Central Government. No separate orders for recognition of such foreign qualification is needed to be issued. The Tribunal also noted that UGC had advised Indian students to ascertain information regarding equivalence of the degrees and diplomas awarded by accredited Universities abroad. While examining these facts, The Tribunal in the said case held that the course offered by appellants resulting in the issue of certificate by the University of London, which is treated as equivalent to degree or diploma issued by Universities in India, the appellant was held to be falling outside the scope of definition for “Commercial Training or Coaching Centre”.
The appellant-assessee is falling under the excluded category for tax purpose - appeal allowed - decided in favor of appellant-assessee.
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2017 (11) TMI 1270
Security agency service - Non-payment of service tax - demand of duty with penalties - Held that: - The appellants did not pay the service tax at least for two years during the material time neither they filed any returns during this time. The reasons for the same are not at all tenable. Admittedly, the business continued and the appellants earned income. They also collected service tax along with their charges. Their failure to deposit service tax especially when the same has been collected from the client, clearly brought out the deliberate intent of non-payment of service tax.
Valuation of taxable service - Held that: - identical issue decided in the case of Neelav Jaiswal & Brothers Versus CCE, Allahabad [2013 (8) TMI 147 - CESTAT NEW DELHI], where it was held that Section 67 of the Act dealing with valuation of taxable service for charging Service Tax specifies that where the provision of service is for a consideration in money, the taxable value would be the gross amount charged by the service provider for such service provided or to be provided by him.
Pure agent service - reimbursement of expenses towards Uniform Allowance, Bonus, PF, OT allowance, ESIC, Insurance, etc - includibility - Held that: - We find no merit in such claim as clearly brought out in the impugned order. The appellants could not produce any contractual agreement with the clients and details of bills raised to indicate as per pre-arrangement that there are reimbursable expenditure
Extended period of limitation - penalty - Held that: - the non-payment of service tax, even after collection of the same from the client, non-filing of returns, when the appellant is in this business for long time, is not supporting the claim of the appellant against imposition of penalty or demand for extended period - extended period and penalty rightly invoked.
Appeal dismissed - decided against appellant.
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2017 (11) TMI 1263
Site Formation and Clearance - Excavation and Earthmoving and Demolition service involving horizontal drilling for passage of cables without the use of machines - demand of service tax - 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 appoint the Third Member for resolving the following issues: - (a) Whether the Member (Judicial) is correct in holding that there is an evidence to the effect that the respondent has executed the work without HDD machines, therefore, the demand of service tax is not sustainable except in the case of M/s. Tata Tele Services or not?, (b) Whether Member (Judicial) is correct in holding that the activity is not preparatory in nature for construction of building and other contractors or not?, (c) Whether the learned Member (Technical) is correct in holding that the activity of the respondent is clearly covered under Sr.No.(iii) of the definition of service under Section 65 (97a). The definition in no way and nowhere implies that only such horizontal drilling is covered thereunder which is done using drilling machines or not? - matter referred to Third Member to be appointed by Hon'ble President.
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2017 (11) TMI 1252
Refund of excess paid service tax - The impugned order held against the appellant only on the ground that the original authority should have awaited the outcome of appeal filed by the Revenue against order dated 30.08.2012 of the Commissioner - Held that: - the said appeal has no direct relevance regarding the fact of excess payment by the appellant. Even otherwise, the appeal by the Revenue was dismissed by the Tribunal, on 09.02.2017. As such we find no legal justification in the finding recorded by the Commissioner (Appeals) in the impugned order - appeal allowed - decided in favor of appellant.
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2017 (11) TMI 1251
CENVAT credit - taxable as well as exempt services - non-maintenance of separate records - Rules 6 (3) (c) of CCR, 2004 - the Cenvat Credit was restricted to 20% of the output taxable services provided by them, the respondent has availed credit in excess - Held that: - the case of the Revenue is not sustainable as Revenue has calculated month wise whereas Cenvat Credit is available to them up to the limit of 20% of the input services as per return wise as held by this Tribunal in the case of Vodafone Essar Digilink Ltd. Vs. CCE, Jaipur [2011 (6) TMI 586 - CESTAT, NEW DELHI] - as per the return wise, the respondent has correctly availed the Cenvat Credit up to 20% of the input services credit - appeal dismissed - decided against Revenue.
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2017 (11) TMI 1243
Classification of services - works contract - Department issued SCN alleging that the services rendered by the appellant will not fall under Erection, Commissioning and Installation service but would fall under Commercial or Industrial Construction service - Held that: - From the records it is observed that the contract is composite contract. The period involved is between 10/2005 and 3/2007. The issue whether works contract service is subject to levy of service tax prior to 1.6.2007 is 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 dismissed - decided against Revenue.
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2017 (11) TMI 1230
Commercial Training and Coaching service - fees received for offering courses of London School of Economics (University of London) resulting in issue of degree by the University of London - Fee received for coaching provided for Business English and Personality Development - scope of service - difference of opinion - majority order.
Held that: - On the first issue, regarding courses offered by the appellant resulting in the degrees/diplomas awarded by University of London, I find that these degrees/diplomas are to be considered as recognized by the law for the time being in force - It is a well known fact that the colleges in India provide courses resulting in degrees or diplomas but the said degree and diplomas are issued by the University or the main Institute to which these colleges are affiliated. If it is to be held that as the degree is not issued by the college which is providing course, the college should be considered as a “commercial trainee or coaching centre”, subjected to service tax, such interpretation will result in absurd consequences. Admittedly, the degree or diplomas are issued by the Universities or the main organization to which the college or an institute or a centre is affiliated - the degree or diploma being issued by University of London can be considered at par while interpreting the scope of commercial training or coaching centre.
Whether such a degree or diploma is recognized by law for the time being in force? - Held that: - the department has been taking consistently a view that when an educational institute is affiliated to a university/institution awarding a degree recognized by law, then the said institute is not a commercial training or coaching centre. Reference can be made to circular No.26/2003- 28.08.2012 and 26.02.2010 of the Board. Admittedly, the appellants were providing course resulting in the award of B.Tech, BBA, MBA of Allahabad Agricultural Institute (deemed university). No demand for Service Tax has been made in respect of these courses. Even on this ground, the appellants can not be considered as commercial coaching or training centre - Apart from the fact that the appellants will fall outside the purview of commercial coaching or training centre, I find that the Business English Course and Personality Development course offered by the appellants will be covered by exemption notification No.9/2003 ST.
Demand not sustainable - appeal allowed - decided in favor of appellant.
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2017 (11) TMI 1182
Service of repairing of footwear - sale or service? - appellant claim is that they were paying VAT on the full amount of income so generated and that they have supplied the material wherever necessary to complete the repairing service - Department, however, took the view that the activity undertaken by the appellant was in the nature of service covered under the heading 'management, maintenance or repair service' - Held that: - such activity cannot be considered purely as sale of repair materials but is an activity covered under sec 65 (105) (zzzg) under the heading ‘management, maintenance of repair service’ - demand upheld.
Benefit of N/N. 12/2003–ST dated 1/3/2006 - the benefit is available only subject to satisfaction of conditions specified therein. One of the conditions is that the assessee should be in possession of documentary evidence indicating of value of goods/materials sold along with the provision of service. Further, no Cenvat Credit of duty in respect of such goods and materials should have been availed - Held that: - the appellant has failed to substantiate that they have fulfilled these conditions. They have also not placed any evidence to justify the benefit of notification - benefit rightly denied.
Appeal dismissed - decided against appellant.
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2017 (11) TMI 1181
Renting of Immovable Property Service - shops let out on the chemist - interest - penalty - Held that: - The claim of the appellant is that they have paid a sum of ₹ 8,54,4009/- towards interest. The ld. AR disputed that the said amount is not towards interest. In that circumstances, the matters needs examination at the end of the adjudicating authority to ascertain the fact from the records whether the appellant paid service tax along with interest for the intervening period or not? - matter on remand.
Penalty - Held that: - the appellant had paid service tax on the direction of the Hon’ble High Court of Punjab and Haryana and the matters is pending before the Hon’ble Apex Court whether the levy of the service tax can be made against the appellant under the category of renting of immovable property service - no penalty is imposable on the appellant, therefore, by extending benefit of Section 80 of the Finance Act, 1994, the penalty imposed on the appellant in impugned order is set aside.
Appeal allowed by way of remand.
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2017 (11) TMI 1112
Business Auxiliary Services - C&F service - regulate supply of liquor through conferring the exclusive privilege of purchase and sale in the wholesale thereof - sale of liquor only through the canalising agency - Held that: - the issue is decided in the case of Union of India vs. M/s. Chattisgarh Estate Beverages Corporation [2015 (3) TMI 744 - CHHATTISGARH HIGH COURT], where it was held that The Tribunal has recorded a finding of fact that the Corporation was engaged in purchase and sale of liquor and could not be considered as clearing and forwarding agent for the State Government. It is finding of fact. No illegality in the finding has been pointed out.
Appeal allowed - decided in favor of appellant-assessee.
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2017 (11) TMI 1111
Renting of Immovable Property Service - Department, after audit of the accounts of the appellant, was of the view that the amount received by the appellant towards lease rent will be liable to the payment of service tax under the category of Renting of Immovable Property Service - Held that: - the issue is decided in favour of revenue by the Tribunal in the case of M/s. Greater Noida Industrial Development Authority Versus CCE & ST, Noida [2014 (9) TMI 306 - CESTAT NEW DELHI], where it was held that renting of vacant land by way of lease or licence (irrespective of the duration or tenure), for construction of a building or a temporary structure for use at a later stage in furtherance of business or commerce is a taxable service only from 1-7-2010, and not so, earlier to this date - demand upheld.
Extended period of limitation - Held that: - the demand of service tax is to be upheld only for the normal time limitation period - Only for the limited purposes of quantification of the demand falling within the normal time limit, the case is remanded to the adjudicating authority.
Appeal allowed - decided partly in favor of appellant.
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2017 (11) TMI 1110
Convention services - whether or not the appellant provided convention services liable to service tax? - Held that: - Admittedly, any person of a specialized group is also a part of general public for other purpose. In a general way, all persons, in given situation, are part of “general public”. However, when a person takes part in a activity with reference to his expertise, skill, etc. he is no more a part of general public and becomes a part of a select group or recognized group of public with certain common basis - we are not in agreement with the plea of the appellant that the conferences, seminars and workshops organized by the appellant are meant for or open to general public. The analysis and reasoning in the impugned order is more close to the statutory definition for the tax entry - demand upheld.
Time limitation - Held that: - the impugned order itself while examining the liability of the appellant for penalty under Section 78, held that there is no mens rea behind the non-payment of service tax on the part of the appellant. That being so, we find that the ingredients for invoking extended period for demand is absent in the present case - extended period and penalty cannot be imposed.
Appeal allowed in part.
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2017 (11) TMI 1109
Business Auxiliary Services - Commission received from airlines - Held that: - the tax liability on similar activities under the category of ‘Business Auxiliary Service’ has already come up for consideration before the Tribunal in the case of DHL Logistics (P) Ltd. Vs CCE, Mumbai-II [2017 (8) TMI 600 - CESTAT MUMBAI], where it was held that This activities can be no stretch of imagination by considered as BAS as for any service to statute the BAS at least three parties should be involved in the transaction namely the service provider, service recipient and the client. There are only two parties in the transaction, the seller of space and the buyer of space. Any commission/incentive received, as a result of this transaction of sale cannot be considered as supply of BAS - appeal dismissed - decided against Revenue.
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2017 (11) TMI 1108
Erection, commissioning and installation service - Revenue held a view that the respondent did not discharge service tax on various services rendered to their clients under the said category - Held that: - The fact that the respondent availed certain services from job workers to install and make it functional, the delivered equipment in the premises of the customers by itself will not vary the nature of contract and the fact that they have paid the sales tax on the full value - If the goods were sold and VAT is paid as per the State Govt. law for full value, no tax liability will arise under the Finance Act, 1994.
The SCN proceedings against the respondent is to recover service tax under “erection, commissioning and installation service”. We note that the contracts which were proposed to be made liable for service tax are composite in nature involving supply of goods and certain element of service as claimed by the Revenue. If that be so, the tax liability of such service will arise only with effect from 1.6.2007 - On this ground also the proceedings could not have been concluded under works contract as the proposal is under entirely different service.
Appeal dismissed - decided against Revenue.
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2017 (11) TMI 1107
Classification of services - activities of unitisation, strapping and packeting undertaken in terms of contract with M/s BSP, Bhilai, in the client’s premises - whether classified under Cargo Handling Services or otherwise? - Held that: - the very same issue in the assessee-Appellants‟ own case was subject matter of the decision before the Apex Court Signode India Limited Versus Commr. of Cen. Excise & Customs-II [2017 (3) TMI 934 - SUPREME COURT OF INDIA], where it was held that All activity undertaken by the appellant, though related to packing activity, is at a stage when the goods are yet to clear the factory gate as manufactured goods for onward transportation. Prior to the amendment made by the Finance Act of 2005 with effect from 16.06.2005, the appellant would not be liable to pay service tax on the service rendered by it in terms of Section 65(23) read with Section 105(zr) of the Act.
The demand of Service Tax on the assessee-Appellants for the relevant period will not arise - appeal allowed - decided in favor of appellant-assessee.
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