|
Advanced Search Options
Service Tax - Case Laws
Showing 41 to 60 of 204 Records
-
2017 (12) TMI 1383 - CESTAT BANGALORE
Maintainability of appeal - time limitation - condonation of delay of 48 days - Held that: - there is no infirmity in the impugned order because as per Section 85(3A), the appeal before the Commissioner (A) has to be filed within 60 days from the date of communication of the order - reliance placed in the case of Singh Enterprises vs. CCE, Jamshedpur [2007 (12) TMI 11 - SUPREME COURT OF INDIA] wherein it was made clear that the legislature intended the appellate authority to entertain the appeal by condoning the delay only upto 30 days after the expiry of 60 days which is the normal period of preferring appeal - appeal dismissed.
-
2017 (12) TMI 1382 - CESTAT BANGALORE
Classification of services - Business Auxiliary Services or otherwise? - the services such as felling the trees, conversion, debarking, stacking of the logs, etc., provided by the contractors to M/s. MPM - manufacture - extended period of limitation - Held that: - In terms of Section 65 (19) (v), production or processing of goods for, or on behalf of the client is a service falling under the category of business auxiliary service.
It is not a simple case of cutting of trees and then transporting the cut and debarked wood to the premises of their client. The appellants are required to convert the cut wood into billets of specific sizes, which sizes are fit for use in the pulp plant - as the issue of manufacture was never raised before the authorities below, we deem it fit to set aside the impugned orders and remand the matters to the original adjudicating authority for the purpose of deciding on the said plea of the assessees.
Time limitation - Held that: - it is clear from above that the Revenue, though in the context of dispute involving the Mysore Paper Mills, was aware of the fact of placing work orders upon various contractors, for extraction collection, debarking stacking of the pulp wood. From this it becomes clear that there was no mala fide on the part of the contractors to suppress the fact of placement of work orders upon them - there is no mala fide motive on the part of the contractors not to pay the service tax - extended period not invocable.
As the matters are being remanded to the original adjudicating authority for considering the aspect of manufacture, we direct him to examine each and every file separately and to limit the demands, if any, to the normal period - appeal allowed by way of remand.
-
2017 (12) TMI 1381 - CESTAT NEW DELHI
Business Auxiliary Services - activities in connection with receipt, storage, sale and sale promotion of the goods manufactured and sold by their principal - N/N. 13/2003-ST - Held that: - the appellants are engaged del credere agent and are causing sale of goods received from the principal. The amount paid to the appellant is linked with the sales quantum. The same is pre-determined as per the agreement - appellants are eligible for exemption as commission agent under N/N. 13/2003-ST. - similar issue decided in the case of Premier Enterprises Versus Commissioner of Central Excise, Hyderabad [2009 (3) TMI 123 - CESTAT, BANGALORE], where it was held that Once they are held to be commission agents, they will be entitled for exemption under N/N. 13/2003-ST during the relevant period - benefit of notification allowed.
Valuation - includibility - reimbursable expenses - Held that: - It is clear that the various expenditure which were claimed on actual basis to be reimbursed by M/s United Breweries Ltd. are in effect reimbursable expenditures which are incurred on behalf of the principal. These are in terms of pre-arrangement with the principal. It is clear such expenditure which are on behalf of the principal in accordance with agreement which are reimbursed on actual basis without any mark up are not to be included in the assessable value - there is no justification to tax the reimbursable expenditures which are based on pre-arrangements with the principal and are received on actual basis.
Appeal allowed - decided in favor of appellant.
-
2017 (12) TMI 1380 - CESTAT NEW DELHI
Classification of services - Site formation services or mining services - scope of work - Held that: - The scope of work mentioned covers providing all equipment, manpower, tools and tackles as stated under Clause 8 of this LOI. Admittedly, the appellants have processed excavated boulders to required size for use by the clients. The contract indicates that it is part of the Rajasthan Road Project Package RJ-7 - it is well settled position that such type of contracts were there is an extraction or raising of ore or mineral, the same cannot be considered as site formation service. In the present case, there is an excavation or extraction of boulders for further process.
Regarding tax liability post 1.6.2007 under category of “mining service”, the appellants did undertake the process of excavating the boulders. However, substantially, there are further process involved on such excavation to make fit for client - the essence of the contract is to supply the required quantity of the specified size bounders to the client as per required quantity per day. As such, these are more properly covered under the tax entry “Business Auxiliary Service”.
The scope of the term “manufacture” has no direct relevance to the issue at hand.
Appeal allowed - decided in favor of appellant.
-
2017 (12) TMI 1379 - CESTAT NEW DELHI
Service tax liability - construction of residential complex service - commercial and industrial construction service - Closure for the amount already paid in terms of Section 73 (3) of the FA, 1994 - Held that: - the nature and use of building being for school education managed by school recognized by the Government, the building is excluded from the tax liability under commercial or industrial construction service - the building is primarily used for education and not for commerce or industry. Accordingly, tax liability set aside.
Invocation of Section 73 (3) - Held that: - Section 73 (3) speaks about closure of case without further proceedings. In the present case, proceeding was continued, resulting in the impugned order. To that extent closure in adjudication proceeding is not contemplated in the said Section - also, there is no merit in the appeal by the Revenue for imposition of penalty under Section 76 and 78.
Appeal dismissed - decided against Revenue.
-
2017 (12) TMI 1378 - CESTAT NEW DELHI
Levy of service tax - commercial training or coaching service - Revenue entertained a view that the appellants are engaged in commercial training and coaching and are not issuing any certificate or diploma recognized by law for the time being in force - Held that: - the expression “recognized by law” is a very wide one. Even if the Certificate is not the product of a statute but has approval of some kind in “law” would be exempted.
It is apparent that the courses conducted by the appellants are essential and relevant and enables the candidate to obtain employment in the specialized field. As such, on this ground also the appellants liability to service tax gets exempted.
Appeal allowed - decided in favor of appellant.
-
2017 (12) TMI 1377 - CESTAT NEW DELHI
Composite works contract - Commercial or industrial construction service - extended period of limitation - Held that: - It is clear that in case of composite works contract the tax liability will arise only with effect from 01.06.2007, demands under commercial or industrial construction service do not sustain - There is bonafide belief on the part of the appellant regarding non-liability to service tax. Such being in the case, we find the elements required for invoking extended period for demand under Section 73 could not be established in the present case - appeal allowed on limitation.
-
2017 (12) TMI 1376 - CESTAT NEW DELHI
Reverse charge mechanism - services availed by them from foreign companies under the category of Banking and Other Finance Services - Section 66A - case of appellant is that the service provider in UK is having a permanent establishment in India and as such, the appellant is not covered by Section 66 A - whether the presence of such an establishment in India is relevant to determine the tax liability of the appellant u/s 66 A? - Held that: - the permanent establishment of the service provider in India has no role or connection with the provisions of service - the appellants received service provided by a legal entity separately recognized and established in a foreign country, this is a case covered u/s 66 A - the appellants are liable to pay service tax on reverse charge basis w.e.f. 18.04.2006.
Time limitation - Held that: - the appellants having received service from foreign entity and having been aware of the provision of Section 66 A, should have examined the tax liability for due discharge, extended period rightly invoked.
Penalty - Held that: - the provision of Section 80 can be invoked for waiver of penalty in the facts and circumstances of the case as the appellants have been pleading regarding the payment of consideration through Indian affiliates of the service provider situated in UK - penalties set aside.
Appeal dismissed - decided against appellant.
-
2017 (12) TMI 1315 - CESTAT NEW DELHI
Levy of service tax - Airport services - passenger service fee - Held that: - identical issue decided in the case of M/s Royal Jordanian Airlines, M/s China Eastern Airlines, M/s China Airlines, M/s KLM Royal Dutch Airlines Versus CST, Delhi [2017 (11) TMI 1407 - CESTAT NEW DELHI], where reliance placed 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 not levied.
Penalty on demand of service tax which was paid during the course of investigation - Held that: - issue came up before the Tribunal in the case of American Airlines vs. CST, Delhi [2016 (7) TMI 92 - CESTAT NEW DELHI], where it was held that Mere omission to give correct information is not suppression of facts unless it was deliberate and that an incorrect statement cannot always be equated with wilful mis-statement - penalty set aside.
Appeal dismissed - decided against Revenue.
-
2017 (12) TMI 1314 - CESTAT NEW DELHI
CENVAT credit - distribution of credit - place of removal - scope of SCN - Held that: - Since, the Commissioner (Appeal) has addressed the basic issue raised in the SCN, he should have concluded his findings only to that extent as alleged in the SCN. Since he has decided the issues, which were not the part of allegation in the SCN, it is evident that he has travelled beyond the scope of the SCN, which will not stand for judicial scrutiny - appeal allowed - decided in favor of appellant.
-
2017 (12) TMI 1313 - CESTAT NEW DELHI
Composite contracts - commercial or industrial construction service - Held that: - the status, nature and use of civil construction is relevant to decide the tax liability under commercial or industrial construction service. The status of recipient of service is of no relevance. If the building or civil structure is used for commercial purpose, tax liability may arise subject to fulfillment of other conditions. There should be clear finding in respect of claims made by the appellant with reference to certain civil structures as being non-commercial in use - The contracts with reference to construction of residential complex has also to be examined to determine whether the number of residential units are above 12 and the other requirements of the tax entry are fulfilled.
There are multiple contracts subjected to service tax. It is necessary that each of the contracts is to be examined and finding recorded - matter is remanded back to the Original Authority for fresh decision after giving due opportunity to the appellant - appeal allowed by way of remand.
-
2017 (12) TMI 1312 - CESTAT NEW DELHI
Refund of service tax - time limitation - Section 11 B of the CEA, 1944 - the service tax was deposited with the jurisdictional service tax authorities at Delhi and that explaining the situation and circumstances of the case, the appellant had requested the Chief Commissioner of Delhi to transfer/ adjust the excess amount paid by it into the Chandigarh Registration Account many times, failing which, the refund application filed - Held that: - The Department never responded to the letters of the appellant and also never advised the appellant for filing the proper refund application within the stipulated time frame provided under the statue. Thus, for the lapses on the part of the Department, the appellant should not be held responsible and should not be deprived of its legitimate right to claim refund of service tax as provided under the statue.
The initial letter dated 30.03.2014 filed before the Chief Commissioner of Central Excise and Service Tax, requesting for transfer/ adjustment of excess paid amount into the Chandigarh Account, should be considered as the application for refund in terms of Section 11 B of the Act. Since the said application was filed within one year from the relevant date i.e. payment of Service Tax, the claim of the appellant, is not barred by limitation of time.
Rejection of refund on the ground of time limitation not justified - appeal allowed - decided in favor of appellant.
-
2017 (12) TMI 1311 - CESTAT NEW DELHI
Works contract - Erection, Commissioning and Installation services - composite work order for constructing petrol pumps, road work, pump installations, piping, soil work, etc. - Non-payment of service tax - Held that: - the impugned order split up the single contract only based on the bill rates and the detailed invoices raised. Such bifurcation is not sustainable. The appellant carried out the composite work order though the bills are raised based on the completion of the work category-wise giving different account codes to various types of works. This by itself cannot be considered as different services provided to the clients. As such, the appellants shall be liable to service tax only under works contract service w.e.f. 1.6.2007.
Abatement - Held that: - the same requires verification with supporting data to be submitted by the appellant - matter on remand.
The appellants shall be liable to service tax under works contract service w.e.f. 1.6.2007. The quantification of their liability shall be determined by the Original Authority after examining the supporting documents - appeal allowed in part by way of remand.
-
2017 (12) TMI 1310 - CESTAT NEW DELHI
Extended period of limitation - reversal of CENVAT credit - common input services for providing taxable service as well as exempted service (Trading of goods) - non-maintenance of separate records - Rule 6 (2) and Rules 6(3) of the CCR, 2004 - Held that: - Whether the activity of trading should fall under the category of exempted service, was highly contentious. The activity of trading was brought into the preview of exempted service in Section 66 D of the Finance Act, 1994 as amended by Finance Act, 2012. Thus, in such eventuality, allegation of suppression, mis-statement etc. cannot be leveled against the appellant for invocation of the extended period of limitation for issuance of the SCN - the appellant is a registered assessee under the Service Tax statute and had complied with the statutory provisions, including filing returns. Thus, it cannot be said that the appellant had contravened any of the provisions of the statute.
SCN issued in this case by invoking the extended period of limitation is clearly barred by limitation of time - appeal allowed - decided in favor of appellant.
-
2017 (12) TMI 1309 - CESTAT ALLAHABAD
Security agency service provided by Police department - levy of service tax - Held that: - the appellant have rendered statutory function, as providing security is a sovereign function - the service provided by appellant, are not taxable, as clarified by Circular No.96/7/2007-ST. - appeal allowed - decided in favor of appellant.
-
2017 (12) TMI 1275 - CESTAT ALLAHABAD
Scope of SCN - CENVAT credit on Capital goods - Held that: - It is a settled principle of law that no demand can be sustained unless the same is based on a proposal in the SCN - Once the SCN do not propose to deny any CENVAT Credit availed on items treated as capital goods, the same could not have been taken up and adjudicated in the Impugned Order - the demand of INR 7,63,18,307/- confirmed in impugned order on this issue is not sustainable and is set aside.
Excess utilisation of credit - adjustment with the shortfall - Held that: - it is evident from the Table that the Appellant was entitled to further utilise credit amounting to INR 20,66,664/- and INR 90,78,879/- in the months of November and December, 2004 and there is no bar in law to restrict the utilisation of such quota of entitlement in the subsequent months. Thus, the entitlement of INR 1,11,45,561/- (INR 20,66,664/- + INR 90,78,897/-) is in excess of INR 59,77,551/- which is the short fall in the month of January, 2005 - reliance placed in the case of Vijyanand Roadlines Ltd. Vs. Commissioner of Central Excise, Belgaum [2006 (12) TMI 56 - CESTAT,BANGALORE] where it was held that utilisation is not restricted to monthly or quarterly basis and it can be utilised at any point of time - the demand of INR 59,77,551/- confirmed on this issue is thus not sustainable and is set aside.
Appeal allowed - decided in favor of appellant.
-
2017 (12) TMI 1213 - CESTAT MUMBAI
Extended period of limitation - penalty u/s 77 and 78 - Construction of Residential Complex - Held that: - there was no occasion for the Department to know the fact of non-payment of Service Tax by the appellant. For this reason Department could not issued show-cause notice within the normal time period of one year. The failure on the part of the appellants in as much as they have not obtained the Service Tax Registration and also not filed periodical ST-3 return, they have suppressed the fact of non-payment of Service Tax from department therefore the extended period was rightly invoked - the demand of Service Tax and interest thereof is upheld.
Penalty u/s 77 and 78 - Held that: - Since the issue of penalty u/s 78 is mixed question of law and fact, we are of the view that the matter needs to be reconsidered by the Adjudicating Authority - For the purpose of re-deciding the issue of penalties imposed under Section 77 & 78, the matter is remanded to the Adjudicating Authority.
Partly decided against appellant and part matter on remand.
-
2017 (12) TMI 1211 - CESTAT MUMBAI
Sale of SIM cards - demand of service tax - extended period of limitation - Held that: - as per the judgment of Honble Apex Court in the Appellants own case viz IDEA MOBILE COMMUNICATION LTD. Vs. COMMR. OF C. EX. & CUS., COCHIN [2011 (8) TMI 3 - SUPREME COURT OF INDIA] it was held service tax to be payable - However since the issue was in dispute in many cases before the Tribunal, particularly in Appellants own case in Idea Mobile Communication Ltd. [2012 (8) TMI 565 - CESTAT, NEW DELHI], the tribunal set aside the demands for the extended period - the demands of service tax on sale of sim cards raised by invoking extended period and penalty to that extent is not sustainable against the Appellant.
Demand of service tax - International roaming services provided to persons coming to India - Held that: - the subscribers are not of the Appellant but of foreign telecom network operator. There is no contract between the Appellant and subscriber of foreign telephone operator. In such case when the service has not been given to any subscriber, the service tax demand cannot be made - demand set aside.
Business auxiliary Service - Held that: - the services of giving space on towers for erection of antenna, usage of tower rooms for installation of equipments, usage of generator sets etc by the Appellant would fall under the category of Business Support Service - the adjudicating authority shall scrutinize the service tax payment made by the Appellant and shall communicate the deficiency to the Appellant who shall make payment of the same alongwith interest.
Penalty - Held that: - the Appellant shall be liable to penalty u/s 78 to the extent of the service tax amount stand confirmed. However the penalty u/s 77 is reduced to ₹ 5,000/-.
Appeal disposed off.
-
2017 (12) TMI 1210 - CESTAT MUMBAI
CENVAT credit - job-work - Rule 6 of the CCR, 2004 - inputs/input services used for providing taxable and exempted output services - non-maintenance of separate records - Held that: - it is not in dispute that the activities undertaken by M/s IHT & IHC were in respect of goods on which the principal manufacturers were paying duty. It is the accepted fact of the show cause notice that the principal manufacturers were discharging central excise duty on final products - In terms of Rule 3 of Cenvat Credit rules 2004 the job-worker is eligible to avail credit of tax paid on input and input services where the jobwork is undertaken in terms of N/N. 214/86 CE dt. 25.03.1986 i.e when the principal manufacturer is discharging duty on final products.
The Appellants have correctly availed the cenvat credit used in job-work activity and the bar of Rule 6 of the CCR, 2004 would not apply - appeal allowed - decided in favor of assessee.
-
2017 (12) TMI 1205 - CESTAT MUMBAI
Management, Maintenance and Repair Service - software - levy of tax - Held that: - the services repair, maintenance and management of software by the entity situated outside India was carried out through internet. Such services were brought into tax net by insertion of proviso to Rule 3 (ii) of the Taxation of Services (Provided From Outside India and Received in India), Rules, 2006 vide N/N. 6/2008 - ST dt. 01.03.2008 - the services become taxable by insertion of above w.e.f. 01.03.2008, whereas in the present case the demand pertains to the period 13.06.2005 to 17.11.2006, hence the service tax is not leviable - demand not sustainable.
Business Support Service - Held that: - the services were rendered in respect of providing international roaming services to the customers of the Appellant and the same falls under the category of Telecommunication services and the same is not taxable - demand set aside.
Development & Supply of content for Telecommunication, Advertising and Online Information Services - demand paid before issuance of SCN - penalty - Held that: - except services under the category of “Development & Supply of content for Telecommunication, Advertising and Online Information Services” no service tax is payable and the demands are set aside. In case of demand under the Category of D & STA Services taking into consideration the fact of deposit of Service tax with interest before issuance of show cause notice and the revenue neutrality, we find it fit not to impose any penalty - penalty not sustainable.
Appeal allowed in part.
........
|
