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Service Tax - Case Laws
Showing 81 to 100 of 204 Records
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2017 (12) TMI 1098 - CESTAT MUMBAI
Classification of services - Clearing and forwarding agency service or Business Auxiliary services - case of appellant is that they have no infrastructure to handle the coal and the coal companies are solely responsible for C & F operation and this by no stretch of imagination can be called Clearing and Forwarding operations.
Held that: - From the activities of the appellant as mentioned in the show cause notice and impugned order, it is seen that there is no role of appellant in getting the coal cleared from the collieries. The role of appellant is merely to supervise the loading and movement of coal - it is seen that at no stage during the movement of goods the appellant actually received the goods in their custody. The appellants act as an agent at different stages to take samples of coal. While the appellant are responsible for dispatch of coal as per SLC Linkages/MSEB requirement of the coal they are not responsible to dispatch the goods themselves. In terms of the agreement Clause (2), their activities are merely to supervise the quantity and monitoring the loading, movement of coal from the collieries by Railways in receipt of the same at the destination of rakes are not to be organized by the appellant. The clearance of goods the coals is also not required to be organized by the appellant - the services provided by the appellant are not classifiable under C&F Agent Service - appeal allowed - decided in favor of appellant.
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2017 (12) TMI 1097 - CESTAT BANGALORE
Interest - Penalty - Rule 15(1) of CCR, 2004 - CENVAT credit - input services - mandap keeper service - Held that: - the appellants are not liable to pay interest and penalty because this particular service falls in the definition of input service - appeal allowed - decided in favor of appellant.
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2017 (12) TMI 1096 - CESTAT MUMBAI
CENVAT credit - first appellate authority took note that a sample of the copies of invoices furnished did not bear the name and address of the provider of service as detailed in the registration certificate - rule 9(2) of the CCR, 2004 - Held that: - in the present instance there is a mis-match of the address of the supplier vis-Rs.-vis registration certificate. The validity of that ground to allege complicity especially in the context of the tax evasion by the service provider to deny CENVAT credit is sustainable only with reasonable evidence - denial of CENVAT credit on the ground of failure to deposit tax by the service provider is not correct in equity when there is no any express condition to that effect of CENVAT Credit Rules, 2004 - denial of credit not tenable - penalty also not proper - appeal dismissed - decided against Revenue.
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2017 (12) TMI 1095 - CESTAT BANGALORE
Penalty u/s 76 - invocation of section 80 - case of appellant is that service tax could not be paid on account of financial difficulties and he will pay the balance of service tax at the earliest - Held that: - the appellant has failed to pay the service tax liability till today and unless he pays the service tax liability, he cannot claim benefit under Section 80 for dropping penalty u/s 76 of the FA - appeal dismissed - decided against appellant.
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2017 (12) TMI 1094 - CESTAT BANGALORE
Refund claim - service tax paid which was not required to be paid in view of the exemption - denial on the ground of unjust enrichment - Held that: - the judgment in Writ Petition has not been considered by the Commissioner (A) at all and as per the judgment, the appellant alleged that he has refunded the said amount to the service provider - this case needs to be remanded to the original authority to verify that the appellant has refunded the said amount to the service provider or not - appeal allowed by way of remand.
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2017 (12) TMI 1093 - CESTAT MUMBAI
Principles of Natural justice - case of appellant is that baseless allegations have been made without examining any documents or looking to the taxability aspect of different items intended to be taxed - Held that: - Prima facie, perusal of show cause notice and adjudication order do not indicate following of course of natural justice by the Adjudicating Authority granting opportunity of defence to defend the allegations made in show cause notice. We do not say so by a hypertechnical reading of the same. Justice is not seemed to have been done without proper examination of nature of receipt, ascertaining taxability thereof and quality of evidence examined.
Matter is remanded to learned adjudicating authority to readjudicate the matter by 31st March 2018 granting fair opportunity of hearing to the appellant.
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2017 (12) TMI 1070 - GUWAHATI HIGH COURT
Demand of service tax - Validity of SCN - scenario after the attachment of the Central Goods and Service Tax Act, 2017 as well as the omission of Entry 92C from List-I of the Seventh Schedule of the constitution - Held that: - this Court is of the prima facie opinion that the impugned notice dated 23.10.2017 is without jurisdiction - further proceeding under the impugned notice is hereby stayed until the returnable date.
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2017 (12) TMI 1032 - CESTAT NEW DELHI
Refund claim - service tax paid on reverse charge basis in terms of Section 66A, mistakenly, on non-taxable activity - denial on the ground of unjust enrichment - Held that: - the tax entry on “supply of tangible goods for use” itself came into effect only from 16/05/2008. The tax liability under such entry is not even existing at the time when the appellant entered into contract with DMRC. Hence, the question of factoring such tax liability in the contract price is not possible.
Reliance placed in the case of Himatsingka Seide Ltd. vs. CC, Bangalore [2005 (3) TMI 333 - CESTAT, BANGALORE], where the Tribunal held that there can be no presumption that duty collected in excess of what is payable is passed on to the buyers. Whenever there is a composite price inclusive of all duties, the meaning is the price includes only the duty payable. No presumption can be made that excess duty paid by mistake is passed on to the buyer - In the present case, there is not even a tax liability on the date of conclusion of contract with DMRC.
The lower authorities fell in error in holding against the appellant on the question of unjust enrichment - appeal allowed - decided in favor of appellant.
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2017 (12) TMI 1031 - CESTAT BANGALORE
Refund claim - service tax paid on the commission, now the bank guarantee is surrendered by M/s. HAL ahead of expiry period of 31 months - refund denied on the ground of time limitation - Held that: - refund has to be filed within one year from the date of payment and the date of payment in the present case was 05.08.2009 and the refund was preferred on 04.11.2009 which is beyond the period of one year - reliance placed in the case of Assistant Collector of Customs Vs. Anam Electrical Manufacturing Co. [1997 (1) TMI 80 - SUPREME COURT OF INDIA] wherein the Supreme Court has categorically held that the “relevant date” for the purpose of refund u/s 11B read with Section 83 of the FA is from the date of payment - appeal dismissed - decided against appellant.
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2017 (12) TMI 1030 - CESTAT BANGALORE
Delay in payment of service tax - demand of interest and penalty - extended period of limitation - Held that: - As far as the penalty under section 77 and 78 is concerned, I find that there is no suppression of fact in the present case. Therefore, the extended period of limitation cannot be invoked.
Interest - Held that: - the service tax has been paid on R&D Cess but there was a delay in the payment of the same. But the appellant’s stand is that they have paid the interest which is disputed by the Revenue - the matter is remanded back to the original authority for fresh computation of interest after considering the submissions of both the parties.
Appeal allowed in part and part matter on remand.
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2017 (12) TMI 1029 - CESTAT BANGALORE
Ineligible availment of advance tax deposited - Rule 6(1A) of the Service Tax Rules, 1994 - Revenue's case is that assessee had not produced the original documents evidencing payment of service tax for the services rendered by them for the period in question.
Held that: - intimation of such adjustment was with the Department and at the most it was only a procedural lapse and on account of procedural lapse excess payment made by the assessee cannot be retained by the Government and therefore the action of the Revenue was held to be not sustainable - Moreover the respondent-assessee is a PSU and there is no mala fide intention on the part of the assessee - appeal dismissed - decided against Revenue.
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2017 (12) TMI 1028 - CESTAT BANGALORE
Refund claim - input services consumed within SEZ - telephone services - internet services - maintenance and repair services - denial on the ground of non-inclusion of the specified service category in the approval list of service required for authorised operation - Held that: - the adjudicating authority has not disputed the fact of receipt of these services in the SEZ unit and the same are consumed by the appellant unit - non-inclusion of the services in the list of services approved by the Development Commissioner for authorised operations is just a procedural lapse which cannot be considered as a ground for rejection of refund claim - refund allowed - appeal allowed - decided in favor of appellant.
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2017 (12) TMI 1027 - CESTAT MUMBAI
Refund claim - service tax paid under mistake - time limitation - reference of matter to Larger Bench - Held that: - When the very scope and ambit of Notification No.22/2006-ST is under sub-judice before the Apex Court, it is premature on the part of the Tribunal to decide that issue and overreach the jurisdiction of the Apex Court - appeal is remanded to the adjudicating authority.
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2017 (12) TMI 1026 - CESTAT MUMBAI
SEZ unit - refund of unutilized CENVAT credit - input service - “exports” in accordance with rule 6(a) of Service Tax Rules, 1994 - POPOS Rules - case of Revenue is that such service did not confirm to the definition of ‘exports’ was a consequence of the finding that the place of provision of service which should be outside India as per Place of Provision of Service Rules 2012 was not - Held that: - The destination of the services rendered by the appellant being undoubtedly the location of overseas clients, it necessarily follows that the domestic tax should not be carried outside the country. This requires, refund of such tax, which in the present case, is represented by accumulated CENVAT credit - appeal allowed - decided in favor of appellant.
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2017 (12) TMI 969 - SUPREME COURT
Validity of High Court order - the SCN dated 4th October, 2016 issued to the respondent proposing levy of service tax has been set aside with liberty to the appellants to issue a fresh SCN - Held that: - the High Court ought not to have set aside the SCN dated 4th October, 2016 in its entirety and directed issuance of fresh SCN. The High Court ought to have kept in mind the question of limitation and on that basis ordered for adjudication of the issues/demands raised in the show cause notice dated 4th October, 2016 which survive and required an adjudication on merits.
The SCN dated 4th October, 2016 in so far as the surviving issues/demands are concerned shall be adjudicated subject to such contentions as may be advanced on behalf of the respondent in its reply/additional reply that may be filed in the matter.
Appeal allowed.
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2017 (12) TMI 968 - GUJARAT HIGH COURT
Condonation of delay of 56 days in filing appeal - the order under challenge was served at its factory premises whereas the administrative office was situated elsewhere which consumed sometime in preferring the appeal - Held that: - delay in preferring the appeal was not unduly long. The explanation of the assessee was neither untenable nor baseless. It is not the case that the Tribunal lacked power to condone delay - Delay in filing appeal before the Tribunal is condoned - COD application allowed.
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2017 (12) TMI 967 - CESTAT NEW DELHI
Business Auxiliary services - services provided by the appellant to various clients on behalf of other event managing parties like M/s Rural Communication Marketing Pvt. Ltd. and M/s Lintas India (P) Ltd. - case of Revenue is that Since, the appellants did not organize the events, road shows directly for the client, the services rendered were sought to be taxed as BAS - extended period of limitation - Held that: - there is no merit in the submission of the appellant that the parties to whom they raised bill and received the consideration cannot be considered as their clients or service recipient. The services were rendered to the main client on behalf o these two parties. Though, the appellant provided only part of the service which was agreed upon between these two parties and the ultimate client, the same will be squarely covered under the tax entry of BAS– “provision of service on behalf of the client” - There is a reason for a bonafide belief in such arrangement regarding non-liability of sub-contractor when the main contractor is liable to discharge full service tax. Though the said principle is not applicable against the tax liability but the question of invoking extended period is to be answered in favor of the appellant - there is no case of fraud, mis-statement etc. in the non-payment of tax on this activity by the appellant, extended period cannot be invoked.
N/N. 16/2002-ST - services rendered by the appellant through M/s Lintas India (P) Ltd. for UNICEF - denial on the ground that the appellants did not provide service directly to UNICEF - Held that: - Though the bills were raised in the name of M/s Lintas India (P) Ltd., the nature of service is clearly mentioned as charges towards branding cost of three UNICEF Van, UNICEF Girl Star activities, cost of UNICEF Float Operational for 30 days, branding of Van for UNICEF. A perusal of these bills make it clear that the services are for UNICEF though the bill is raised through M/s Lintas India (P) Ltd. - denial of exemption not sustainable.
Appeal allowed in part.
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2017 (12) TMI 966 - CESTAT NEW DELHI
Non-payment of service tax - best judgment assessment - details accounts not maintained by appellant - invocation of Section 72 of FA, 1994 - Held that: - the appellants categorically asserted that they did not provide any other service other than those, the details of which have been submitted to the lower authorities. The Revenue also could not point out excess receipt on these contracts or the taxable service which gave them the consideration escaping the tax. In the absence of specific allegation with reference to the nature of service or the service recipient it is not tenable to hold an income of the appellant even if it is admitted to be an actual income, as consideration for a taxable service.
The appellants did file returns under Section 70 and also made available all the contracts on which service tax liability will arise for them. As such, application of Section 72 cannot be extended based solely on the income tax return without identifying the specific taxable service or service recipient.
Demand not sustainable - appeal allowed - decided in favor of appellant.
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2017 (12) TMI 965 - CESTAT CHANDIGARH
Business auxiliary services - the appellant had entered into an agreement with DIL and was performing various activities and received consideration in foreign currency - export of services or not? - Held that: - under the Export of Service Rules, 2005, taxable services have been divided into three categories. Admittedly, the services provided by the appellant fall under the category 3 - On the question whether the services mentioned in category 3 qualify as export, various judicial pronouncements have held that to qualify as export, the service recipient should be located outside India and the fact that the service is performed in India is not relevant - the services provided by the appellant qualify as export of service.
Reverse charge mechanism - commercial training or coaching service - technical collaboration agreement between M/s.DIL and DAIPL under which M/s.DIL would train the employees of DAIPL with regard to the Daikin technology - Rule 3(ii) of the Taxation of Services (provided from outside India and received in India) Rules, 2006 - Held that: - the Commissioner has given no finding on this aspect at all and has confirmed the demand and penalty - the matter is liable to be remanded back to adjudicating authority to examine the contention of appellant afresh and given proper findings.
Manpower recruitment or supply service - commercial concern or not? - Held that: - the department has not brought out the fact that the foreign company is a commercial concern engaged in manpower recruitment or supply service - As per the agreement, fee and airfare and cost of the specialist is to be borne by M/s.Daikin Air-conditioning India. Admittedly, these payments are being made by Indian company to Japanese company as a whole - the issue is covered by the judgement of this Tribunal in the case of Volkswagen India Pvt.Ltd. vs. CCE [2013 (11) TMI 298 - CESTAT MUMBAI], where it was held that The global employees working under the appellant are working as their employees and having employee-employer relationship. There is no supply of manpower service rendered to the appellant by the foreign/holding company.
Penalty - revenue neutral situation - technical consultancy service - Held that: - the entire situation was Revenue neutral as the credit was available with the appellant themselves - the Revenue neutral situation comes about in relation to the credit available to the appellant himself and not by way of availability of credit to anyone else - penalty not justified.
Appeal allowed in part and part matter on remand.
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2017 (12) TMI 964 - CESTAT NEW DELHI
Classification of services - Site Formation and Clearance, Excavation and Earth Moving and Demolition services or mining services? - Held that: - The activities carried out by the appellant, though in relation to mining, cannot be considered as mining activity. The work undertaken by the appellant makes the site fit and ready for coal mining, but the mining of coal is not the work alloted to be appellant. Further, it is seen that the activity undertaken is also not a part of composite activity of mining - the activity will be liable for Service Tax under the category of Site Formation and Clearance.
Penalty - Held that: - there were many contractors who were undertaking similar kind of work for various coal fields and there were doubts on Service Tax liability on the activity carried out by them - this is a fit case to exercise discretion under Section 80 of the Finance Act, 1994, for waiver of penalty. But, such waiver can be granted only if the appellant has already paid the entire Service Tax liability along with interest for the disputed period.
Impugned order is upheld regarding demand of Service Tax and interest - Matter remanded only for deciding penalty.
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