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Service Tax - Case Laws
Showing 81 to 100 of 222 Records
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2017 (11) TMI 1106
GTA service - non-payment of service tax - reverse charge mechanism - Held that: - The liability to pay Service Tax is very much linked with the status of the truck owners, as claimed by the assessee-Appellants - However, it is clear that the assessee-Appellants have to establish the status of such truck owners as not belonging to transport agency which is liable to Service Tax. Since this aspect could not be examined by the original authority, matters needs reexamination - appeal allowed by way of remand.
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2017 (11) TMI 1105
Refund of unutilized CENVAT credit - input services - Air Travel Agents service - Real Estate Agents services - Supply of Tangible Goods services - Business Consultant’s Service - Club or Association service - Technical & Scientific Consultancy Services - Held that: - Since all these services in view of the various case-laws have been held to be an ‘input service’, therefore these services are ‘input services’ and it has a nexus with the output services exported - I remand the case back to the adjudicating authority to examine the claim of the appellant afresh after considering the fact that the impugned services are ‘input services’ in terms of Rule 2(l) of the CCR, 2004 - appeal allowed by way of remand.
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2017 (11) TMI 1044
Renting of immovable property service - Reimbursement of expenses - the decision in the case of M/s Mohan Goldwater Breweries Limited Versus Commissioner of Central Excise & Service Tax, Lucknow [2017 (5) TMI 1252 - CESTAT ALLAHABAD] contested - Held that: - delay condoned - appeal admitted.
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2017 (11) TMI 1043
Business Support Services - Revenue entertained a view that the arrangement between the appellant and the CSIDC, for such supply of water, will be covered for service tax purpose under the category of “Support Services of Business or Commerce” - the decision in the case of Radius Water Ltd. Versus Commissioner of Central Excise & S.T., Raipur [2017 (9) TMI 83 - CESTAT NEW DELHI] contested - Held that: - Application for exemption from filing certified copy of the impugned order is allowed - delay condoned - issue notice.
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2017 (11) TMI 1042
Tour operator service - petitioner's contention is that the petitioner's vehicle, which is a contract carriage does not satisfy the ingredients of tourists vehicle, and the demand made by the respondent is illegal - Held that: - the interpretation sought to be given to the observations of the Court does not, in any manner, advance the case of the petitioner.
The rationale applicable to Stage Carriage Permits would equally apply to Contract Carriage vehicles covered by the permit under Section 74 of the Motor Vehicles Act - the respondent was bound to consider the specific plea raised by the petitioner that, he is not a tour operator, undertaking tour in respect of a tourist vehicle, as contemplated under Section 2 (43) of the Act read with Section Rule 85 (A) (7) of the Motor Vehicles Act and Rule 128 of the Central Motor Vehicle Rules - for consideration of this plea the matter has to be remanded to the respondent for fresh consideration - petition allowed by way of remand.
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2017 (11) TMI 1018
Vires of Rule 5A (1) of the Service Tax Rules 1994 - abuse of powers and patent illegality in carrying out the survey/seizure operation in the premises of the Petitioner - Held that: - It is surprising that despite these serious allegations, till date, the Respondents have chosen not to file reply. The failure of the Respondents to do so would have legal consequences. At the same time, the Court cannot be denied the assistance required in matters involving such serious allegations - The Commissioner, Services Tax Delhi –III will produce before this Court in a sealed cover, the entire records pertaining to the case on the next date of hearing - petition is part heard - matter on remand.
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2017 (11) TMI 1015
Intellectual Property service - It is alleged that the Respondent has allowed M/s. Talareja Trade to use brand name PahiliDhar for marketing country liquor manufactured by the Respondent - Held that: - The Respondent is holding CL1 License for manufacturing country liquor and was desirous of obtaining higher returns on the investment made by it on its country liquor plant. The Respondent decided to appoint M/s.Talareja Trade as sole selling agent for the sell of country liquor produced by it. In fact it is noted that M/s. Talareja Trade has become “c” class members of the Respondent Cooperative Sugar Factory. After having perused of the relevant clauses of both the agreements, we find that the finding of the Appellate Tribunal that no Intellectual Property Service has been given by the Respondent cannot be said to be perverse - By the agreements, M/s.Talareja Trade were appointed as sole selling agents of the country liquor which was to be manufactured by the Respondent - appeal dismissed - decided against appellant.
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2017 (11) TMI 1002
Business Auxiliary Service - For operation of receiving EMI payments and remitting the same to SPV / Trust, the appellant-assessee is paid a consideration in percentage terms - Securitization Service Fee - Revenue held a view that this fee is liable to service tax under 'Business Auxiliary Service' as the appellant-assessee provided service to the SPV / Trust which will fall under clause (iv) of Section 65 (19) prior to 10.9.2004 - Held that: - Securitization Service Fee in fact which is sought to be taxed under BAS cannot be attributed to any of the services rendered under the categories mentioned under BAS - For an activity of service which is incidental or auxiliary support service, the activity of the main person (service receiver) is to be identified. In the present case, the obligation of the Trust for PTC holders is identified as the main activity which is incidentally or auxiliarily supported by the appellant-assessee. We find no reason for such inference. It is neither supported by contractual arrangements nor factually established - decided against Revenue.
Business auxiliary services - the allegation is that the appellant-assessee is providing service to ICICI bank which is incidental or auxiliary to the bill collection - Held that: - The cheques and other bills collected by the appellant-assessee are on their own account which are further passed on in terms of agreement with the ICICI bank. The conditions of transaction and schedule of payment will not influence the nature of activity as agreed upon between the two contracting parties - We find no element of Business Auxiliary Service in such arrangement - decided against Revenue.
Appeal dismissed - decided against Revenue.
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2017 (11) TMI 979
Cargo Handling service - supply of coal handling machine (JCB) to M/s Chhattisgarh Power & Coal Benefication Ltd. (CPCBL), Bilaspur - Held that: - the respondent is supplying machinery (JCB) for the client in which absolute possession over the machinery is with the client. Supplying operator does not in any way dilute such absolute possession - The statutory definition in terms of Section 65 (105) (zzzzj) of the Finance Act, 1994 is very clear to the effect that for tax liability for the supply of tangible goods should be without transferring right of possession and effective control of such machinery - the exclusion in the tax entry will operate - appeal dismissed - decided against Revenue.
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2017 (11) TMI 941
Valuation - Abatement - Erection, Commissioning or Installation Services - on-going contracts, at the time of introduction of new tax entry as "Works Contract Service' w.e.f. 1.6.2007 - Held that: - the tax liability of appellant for the period 1.6.2007 will not arise in case of works contract. For the period post-1.6.2007, necessarily the tax liability is determined belatedly under works contract service. Hence the question of option has no relevance as neither appellant nor the Revenue classified the service at the material time under 'Works Contract Service'. The availability of composition scheme as per 2007 Rules are to be examined.
The claim of the appellant that they have discharged more than the required tax on these services even if the claim of the department is taken into consideration for treating the contracts as a whole, requires re-examination - appeal allowed by way of remand.
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2017 (11) TMI 940
Refund claim - input services - export of jewellery - whether appellant are entitled to refund of input service tax on banking services claim to be utilised for the purpose of export? - Held that: - it is an admitted fact that the appellant has got only one manufacturing unit at 179, NSEZ, Noida and another unit of appellant was working as Head office at 2705, Besement, Banki Street, Karol Bagh, New Delhi - It is further admitted fact that there is no separate business activity in their Head office other than the business of manufacture and export of jewellery - the Bank Officers have certified that the services provided to the appellant, the invoice of which addressed to the Head office are actually provided to the factory located at Noida.
The substantial benefit cannot be denied for mere technical or venial breach of the procedural law.
Refund allowed - appeal allowed - decided in favor of appellant.
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2017 (11) TMI 887
CENVAT credit - services provided to Special Economic Zone - C & F Agent services - denial on the ground that it has been entirely used for trading activity? - Held that: - Hon ble High Court of Madras in the case of M/s. Ruchika Global Interlinks vs. CESTAT & CCE [2017 (6) TMI 635 - MADRAS HIGH COURT] has clearly held that for trading activity, appellant is not entitled to the CENVAT credit of service tax - the CENVAT credit of service tax paid on trading activity carried out by the appellant rightly denied.
Demand of interest and penalty - Held that: - the appellant has not paid or short-paid the service tax by reason of collusion, wilful misstatement, suppression of fact or contravention of the provisions of Rule with intend to evade payment of service tax and they have been filing the returns regularly - no penalty is imposable on the appellant u/s 78 of the FA because the condition for imposing the penalty under Section 78 is not present in this case and it was an interpretational issue and therefore, the penalty under Section 78 on the appellant dropped.
Appeal allowed in part.
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2017 (11) TMI 886
Renting of immovable property Service - sale of space or time for advertisement by municipalities / corporations - Held that: - reliance placed in the case of Municipal Corporation Rajahmundry. Versus Commissioner of Service Tax & Central Excise-Visakhapatnam [2017 (7) TMI 685 - CESTAT HYDERABAD], where it was held that there cannot be any dispute on taxability on this score when the said activity is not being shown to be covered by any exclusion or exemption from service tax thereof. We therefore hold that this activity will definitely be leviable to service tax but only for the normal period of limitation.
Further, it was held in the case that if the amounts received by the appellants are only towards advertisement tax collected by them under statutory powers bestowed on them, that activity cannot be brought under ambit of service tax and the taxable value thereof cannot be taxed as sale of space and time for advertising service.
We dispose of the appeals filed by municipalities and municipal corporations by upholding the service tax liability with interest but setting aside the penalties imposed by the lower authorities.
Penalties - Held that: - since the penalties on similarly placed corporations/municipalities are set aside we find that the lower authorities were correct in not imposing any penalties/setting aside the penalties.
Appeal allowed in part.
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2017 (11) TMI 885
Penalties u/s 76, 77 and 78 - erection, commissioning and installation service - composite contract - Held that: - as appellant is not contesting their liability of service tax, which has been paid along with interest, the provision of Section 73(3) of the FA, 1994 are invokable to the facts of this case. In that circumstance, no SCN was required to be issued to the appellant.
Penalty not invokable on appellant by invoking section 80 - penalties set aside - appeal allowed.
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2017 (11) TMI 884
Refund claim - input services - courier service - transportation of goods - control tower charges used in SEZ operations - denial on the ground that the services were post manufacturing expenses and some of the services were wholly consumed in SEZ - Held that: - the assessee is entitled for refund of service tax paid for the services which is in relation to authorised operations in the SEZ - the refund in respect of the transportation service is allowed by relying upon the decision in the case of Tata Consultancy Services Ltd. [2012 (8) TMI 500 - CESTAT, MUMBAI] - appeal dismissed - decided against Revenue.
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2017 (11) TMI 883
VCES Scheme - short payment of service tax - claim of Revenue was that the VCES declaration made by appellant was false - Held that: - as required under sub Section (1) of Section 108 of Finance Act, 2013 the appellant had complied with the requirements of said sub Section (1) of Section 108 ibid and, therefore, as provided under said sub Section (1) appellant had got immunity from penalty interest and any other proceedings under the Chapter - Section 111 of Finance Act, 2013 empowers demand to be issued under Section 73 of Finance Act, 1994 - neither the demand under Section 111 of Finance Act, 2013 nor demand under Section 73 of Finance Act,, 1994 was maintainable in view of immunity granted to the appellant by provisions of sub Section (1) of Section 108 of Finance Act, 2013 - appellant is entitled to be issued with certificate in the form VCES-III - appeal allowed.
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2017 (11) TMI 882
Penalty - cleaning services - jurisdiction of revisionary authority to impose penalty - Held that: - the High Court of Karnataka in the case of CST, Bangalore Vs. Motor World [2012 (6) TMI 69 - KARNATAKA HIGH COURT] has held that when the assessing authority in its discretion has held that no penalty is leviable by virtue of Section 80 of the Act, the revisionary authority cannot invoke his jurisdiction and impose penalty for the first time - appeal allowed - decided in favor of appellant.
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2017 (11) TMI 881
Refund of unutilized input credit - denial on the ground that they have filed the refund claim beyond period of one year from which they exported their final products - Held that: - reliance placed in the case of Commissisoner of Central Excise Versus GTN Engineering [2011 (8) TMI 960 - MADRAS HIGH COURT], where it was held that the relevant date should be the date on which the export of goods was made - refund not allowed - appeal dismissed - decided against appellant.
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2017 (11) TMI 880
CENVAT credit - construction services - input services - principles of res-judicata - Held that: - the construction was raised at Hosakote factory but the appellant has wrongly taken the credit at their Maruthalli factory and when it was pointed out during the audit the appellant paid back the credit which was appropriated by the Revenue - the period in dispute is March 2008 during that time, the construction service fall in the definition of input service under Rule 2(l) under the phrase setting up of a factory and the Commissioner (Appeals) has wrongly applied the amended input service definition which came into force from 01.04.2011 which is probably wrong.
Also, the subsequent demand at Hosakote factory is barred by principles of constructive res judicata as it amounts to double demand for the same service and it is not permitted under law.
Credit allowed - appeal allowed - decided in favor of appellant.
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2017 (11) TMI 837
Immunities granted under the Order No.18/2014-ST dated 28.3.2014 - Section 32K of the Act - Held that: - this Court is of the opinion that it is not open to the Respondent-Commissioner of Central Excise and Service Tax to himself treat the order of Settlement Commission as non est because, in his opinion, the condition of granting immunity under the said order by payment of service tax dues to the extent of `2.19 crore was not satisfied. If at all factually the said Commissioner held such a view, the only course open to him was to approach the Settlement Commission by way of a suitable Miscellaneous Application with the relevant facts, whereupon the Settlement Commission, after giving an opportunity of hearing to the Petitioner could arrive at its own appropriate conclusions and pass appropriate fresh orders.
The Petitioner and the Commissioner of Central Excise and Service Tax only being the rival parties before the said Settlement Commission could not undo the effect of the order passed by the Settlement Commission at their own level and therefore, it was incumbent for the Respondent Commissioner of Central Excise and Service Tax to have approached the Settlement Commission seeking a modification or review of the order passed by the Settlement Commission. The Petitioner was also required to be given an opportunity of hearing by the Settlement Commission in this regard.
This petition is accordingly disposed of by directing both the parties to appear before the Settlement Commission again where the Respondent Commissioner of Central Excise and Service Tax - The Settlement Commission, after giving appropriate opportunity of hearing to the Petitioner, may pass appropriate orders in accordance with law - Petition allowed by way of remand.
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