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Service Tax - Case Laws
Showing 21 to 40 of 232 Records
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2017 (3) TMI 1606
Refund claim - unjust enrichment - Held that: - The deduction of the service tax is not a benefit which will amount to undue enrichment as the burden of payment of service tax cannot be passed on to the consumer - Once the liability of service tax was of the assessee, therefore, it is the assessee alone who would be entitled to refund - appeal dismissed.
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2017 (3) TMI 1605
Extended period of limitation - Cargo Handling Service - Held that: - The question as to whether the cargo handling contract given to the assessee by M/s. Manganese Ore India Limited fell within the definition of Section 65(23) of the Finance Act, 1994 itself was subject matter of bona fide interpretation - Since the levy itself was subject matter of interpretation, it cannot be said that the assessee had any intention to evade payment of service tax which alone would entitle the Revenue to apply the extended period to recover the service tax - appeal dismissed.
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2017 (3) TMI 1598
Refund of unutilized CENVAT credit - various input services - Manpower recruitment agency Services - Security Agency Charges - Internet Charges - Telecommunication services - Auditing Charges - House Keeping charges - Cleaning/ Pest Control - AMC for Xerox/Printing machine - ISMS certification & quality control service - AMC charges for Fire alarm systems - UPS maintenance charges - AMC charges for HVAC Equipment (heating, ventilation & AC) - Website design & development charges - Renewal of windows (operating system) license - Common area maintenance - Banking and Other Financial Service - denial on the account of nexus - Held that: - The issue whether the inputs services are used by the appellant and are eligible for refund has been analysed by the Tribunal in the appellant's own case [2016 (6) TMI 679 - CESTAT HYDERABAD], where it was held that Various services mentioned in the definition 2(l) are only illustrative and other services also when used primarily for personal use or consumption of any employee would not qualify as input services. Cleaning services and housekeeping services are for proper upkeep of the office. These services definitely are not for personal use or consumption of an employee.
The denial of refund is unjustified - appeal allowed.
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2017 (3) TMI 1550
Refund claim - N/N. 41/2007-ST dated 6.10.2007 - terminal handling charges - Bill of lading charges - denial on the ground that these services are not under port services - Held that: - the issue has already been settled by the Honble Gujarat High Court in the case of AIA Engineering Pvt.Ltd. [2015 (1) TMI 1044 - GUJARAT HIGH COURT] wherein it has been held that these services are covered under port service - the appellant is entitled to claim refund in respect of terminal handling charges and Bill of lading charges under port services in terms of N/N. 41/2007-ST 6.10.2007.
Refund claim - CHA services - denial on the ground that there is no mention about exact service availed by the appellant from the concerned CHA - Held that: - there are relatable invoices and certificates have been issued by the CHA for providing the said service to the appellant - the appellant is entitled for refund for service received from the CHA for export of the goods.
It was disputed that on goods transport agency, the appellant has not produced lorry receipt or has not produced any evidence to the extent of payment of service tax by them or service provider in question - the matter is remanded back to the adjudicating authority to ascertain the fact of payment of transportation charges and service tax thereon by the assessee.
Appeal allowed by way of remand.
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2017 (3) TMI 1543
Refund claim - rejection on the ground that the appellant has claimed the drawback on specified services - Held that: - Tribunal in the case of M/s Mittal International and others [2017 (3) TMI 1512 - CESTAT CHANDIGARH] wherein this Tribunal held that the drawback Rules are not applicable for the input services received for export of goods which only includes input services used in manufacturing or processing of export goods - the refund claim filed by the appellant cannot be rejected on the ground that the appellant has claimed drawback on specified services - appeal allowed - decided in favor of appellant.
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2017 (3) TMI 1512
Refund claim - rejection on the ground that the goods have been exported and drawback is allowed on the export of goods - Held that: - the services which were used by the appellants for export of the goods does not form part of the drawback claim, therefore, the appellants are entitled for refund of the service tax paid on the said specified services. The refund claims cannot be denied on this account - refund allowed.
Refund claim rejected on fumigation service as the appellants have not arranged the copy of the written agreement for availing those services - Held that: - in some of the cases, the refund claims were filed on account of fumigation services availed by the appellants and the copy of the written agreement have not been provided to the adjudicating authority. Therefore, the appellants are required to provide a copy of the agreement for such specified services. To examine the issue, the matter is remanded back to the adjudicating authority to consider written agreement availed by the appellants - matter on remand.
With regard to the business auxiliary services, the refund claim was rejected on the ground that the exporter has not provided agreement or contract or any other documents requiring the commission agent located outside India has provided the service to the exporter in relation to the sale of goods - Held that: - the authorities below have not understood the true spirit of the notification. In fact, the notification specifies that any other documents which means if the appellant provides the copy of the invoice, for the commission paid, the same will serve the condition of the notification. Therefore, if the invoice of the commission agent is on record, in that circumstance, the appellants have complied with condition of the notification and the appellant is entitled for availing the refund - refund allowed.
With regard to the services of CHA, the refund has been denied on the ground that the same appears to have been outsourced by the service provider as person who has issued the invoice is not the one who has provided the service - Held that: - the service provider has mentioned the shipping bill number in the invoice as the service provider has been recognized as service provider and has paid service tax on the service, in that circumstance, the appellants are entitled for refund of services tax paid on CHA service - refund allowed.
Denial of Refund claims on GTA service - denial on the ground that the appellants were required to discharge service tax liability and to produce the copy of the GR challan - Held that: - the appellants have produced the copy of the invoices of the transporter who has transported the goods and paid service tax thereon. The proof of payment of service tax by the appellant does not arise as invoices have been issued by the transporter which indicate the payment of service tax, therefore, the invoice and lorry receipt is sufficient for claim of refund - refund allowed.
Denial of Refund for the services namely, terminal handling charges, documentation charges, bill of lading charges - denial on the ground that the services received by the appellant, namely, terminal handling charges, documentation charges, bill of lading charges are the services in the nature of logistics services, therefore, they are covered under the business support service and are not entitled for availment of the benefit of N/N. 41/2007-ST as business support services are not eligible for refund claim - Held that: - the service tax paid by the service provider on the services availed by the appellants are at port, therefore, all the services are covered under port services. Therefore, the appellants are entitled for refund claim - refund allowed.
Appeal allowed in part and part matter on remand.
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2017 (3) TMI 1511
Refund claim - denial on the ground that the appellants are claiming drawback - time limitation - denial also on the ground that the Courier Service and CHA are Business Support Services - Held that: - The drawback claim has been calculated on the basis of the inputs used for manufacturing of the export goods but does not include the services covered under N/N. 41/2007. Therefore, claiming drawback by the appellants does not bar for claiming refund of Service Tax paid on the services covered under N/N. 41/2007 for export of the goods.
On the issue of time barred, refund claim has been filed by the appellant on 11.05.2009 for the period September, 2008 which is squarely covered by the decision of this Tribunal in the case of Raymond Ltd. Vs. CCE, Mumbai-III [2014 (1) TMI 1508 - CESTAT MUMBAI], where it was held that The said Notification was amended vide N/N. 17/2009 dated 07/07/2009 so as to allow filing of the refund claim within a period of one year from the date of export of the goods - refund claim filed by the appellant is within time.
With regard to denial of Cenvat Credit for CHA Services and Courier Service, the said services has been availed by the appellant for export of goods and Service Tax is paid thereon which has not been disputed by the Revenue - the appellant is entitle for refund claim of the same.
Appeal allowed - decided in favor of appellant.
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2017 (3) TMI 1510
Penalty u/s 78 - Option of payment of reduced 25% penalty - Whether penalty imposed u/s 78 of the FA, 1994 can be reduced to 25% by invoking the provisions of first proviso to Section 78, when the assessee has not paid 25% of the penalty amount within 30 days of the order as required under the second proviso to Section 78 ibid - Held that: - Since the amount of duty was already paid even before issuance of SCN, we find that direction to deposit 25% of the penalty amount in terms of the second proviso to Section 78 is fair, reasonable and meets the ends of justice - in an identical situation the Hon'ble Punjab & Haryana High Court, in the case of COMMISSIONER OF CENTRAL EXCISE, LUDHIANA Versus M/s CITY CABLES [2011 (11) TMI 65 - PUNJAB AND HARYANA HIGH COURT] where on similar issue, benefit was extended - Respectfully following the above judgment of Hon'ble Punjab & Haryana High Court, which is the jurisdictional High Court, the amount of penalty is reduced to 25% - appeal allowed - decided in favor of assessee.
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2017 (3) TMI 1509
Refund claim - debit note/expense voucher - Whether the refund can be sanctioned on the basis of debit note submitted by the appellants? - Held that: - In the CBEC clarification dt. 11.12.2008 (supra) issued to streamline procedures for such refunds, it was clarified that Invoices/Challans/Bills issued by the supplier of taxable services in conformity with Rule 4A of Service Tax Rules, 1994 are reasonable evidences - reliance placed in the case of M/s Shivam Exports & Others Vs. CCE, Jaipur [2016 (2) TMI 259 - CESTAT NEW DELHI], where it was held that so long as the documents (debit notes) reveal the essential details like registration no, service provided, service recipient, value of taxable service, refund cannot be rejected (merely because the documents are debit notes).
Whether refund of Terminal Handling charges paid by the appellants in terms of N/N. 41/2007-ST prior to 07.07.2009 can be allowed? - While the Commissioner acknowledges in his order that service of Terminal Handling are provided for export of goods at the port, he has rejected the refund stating that the same was not specifically included in the list of eligible services - Held that: - this particular issue has been decided by this Tribunal in their favour in their own case in Nahar Fibres Vs. CCE, Chandigarh [2013 (12) TMI 330 - CESTAT NEW DELHI], where By reference to the exemption provided at Sl. No. 16 of the table in N/N. 17/2009-ST, the adjudicating authority inferred; and in the considered view of this Tribunal erroneously, that terminal handling charges when provided within the port do not fall under port services vide the N/N. 41/2007-ST. This conclusion of the adjudicating authority which found resonance in the order of the Commissioner (Appeals), is in my considered view erroneous and proceeds on a fallacious interpretation of the provisions of N/N. 41/2007-ST - refund allowed.
Appeal allowed - decided in favor of assessee.
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2017 (3) TMI 1508
Penalty u/s 77 and 78 of FA - appellant's claim that deduction for cost of materials supplied, which is included in the gross amount have not been given, resulted into wrong demand - Held that: - the appellant is entitled to deduction of the material component from the gross amount - as the appellant had paid the taxes and it appears have paid rather more amount then the amount actually payable as per the calculation produced before this Tribunal, which is categorical fact on record. Accordingly, the penalty u/s 78 set aside. However the penalty u/s 77 for ₹ 5000/- is retained - also, upon reducing the material component the turnover for the financial year remains ₹ 7,34,425/- and for this year for the first time the turnover is exceeding four lakhs, they will be entitled to the threshold exemption. Accordingly, the benefit of threshold exemption for the financial year 2005-06 is allowable under N/N. 6 of 2005-ST - matter on remand to the Adjudicating Authority for the limited purpose of recalculating the tax payable, after allowing the threshold exemption and the set off for material component - appeal allowed in part by way of remand.
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2017 (3) TMI 1507
Material, used in repair, transferred to principal - levy of tax - job-work - Held that: - the ld. Commissioner (Appeals) has rightly held that there is transfer of materials in the repair and maintenance done by the respondent-assessee and accordingly no service tax is eligible on the same - appeal dismissed - decided against Revenue.
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2017 (3) TMI 1461
Valuation - erection, commissioning & installation of the electricity transmission towers being supplied by the electricity recipient - whether the cost of the tower supplied by the Electricity Board is required to be added in the assessable value? - Notification No. 15/2004-ST and Notification No. 1/2006-ST dated 01.03.2006. - Held that: - the issue is squarely covered by the larger Bench decision of the Tribunal in favor of the appellant in the case of Bhayana Builders Pvt. Ltd. vs. CST, Delhi [2013 (9) TMI 294 - CESTAT NEW DELHI (LB)] where it was held that the value of the goods and material supplied free of cost by a service recipient to the provider of the taxable service, being neither monetary or non-monetary consideration paid or flowing from the service recipient, accruing to the benefit of the service provider, would be outside the taxable value of the goods amount charged under the said notification - appeal allowed - decided in favor of appellant.
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2017 (3) TMI 1460
Valuation - includability - out of pocket expenses incurred by the appellant and reimbursed by the service recipient - Held that: - It is fairly well settled that service tax is liable only on the value of consideration received for providing the services. Out of pocket expenses which are in the nature of the conveyance, travel, mobile expenses etc. cannot be included for purpose of levy of service tax - issue needs to be remanded to the original adjudicating authority who is directed to consider the documents which will be submitted by the appellant and extend the benefit of deduction of out of pocket expenses after verification of the original documents - appeal allowed by way of remand.
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2017 (3) TMI 1459
Levy of tax - commission received as sub-broker - Held that: - the sub-broker who received commission from the main broker while main broker has paid the service tax on commission received by him cannot be once again subjected to service tax - reliance placed in the case of Commissioner of Central Excise, Kanpur Vs P.K. Khandelwal & Company and others [2016 (1) TMI 391 - CESTAT ALLAHABAD] where it was held that when the main broker has paid service tax then the commission received by the sub-broker shall not be subjected to levy of Service Tax - appeal dismissed - decided against Revenue.
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2017 (3) TMI 1458
Classification of service - Construction Services - classified under Commercial or Industrial Construction Services or works contract services? - Held that: - it appears that the entire construction services are meant for educational institutions or for the welfare of the State which are not commercial or industrial in nature - the institutions, being established solely for educational, religious, charitable, health, sanitation etc., are exempted from the Service Tax, but, when the Government construction is used for commercial or industrial purposes like shops and houses etc., then the same is within the clutches of the Service Tax - we remand the matter to the original authority for examining the nature of each entity for which the construction was made whether the same falls under the “Commercial or Industrial Construction Services” or not - appeal allowed by way of remand.
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2017 (3) TMI 1457
Short payment of tax - Erection, Commissioning & Installation Service - works contract service - Renting of Immoveable Property - Construction of Residential Complex Service - Held that: - SCN is vague as it does not state the premises on the basis of which demand have been proposed under ‘erection, commissioning and installation service’. Without there being a finding of erection of any such commercial flats/residential complex - The SCN is also vague on account of not giving bifurcation of the demand year wise and category wise - so far demand of ₹ 15,48,599/- is concerned the same relates to laying of cables or electrical wires including poles for the same alongside or under the road and such work was not taxable to Service Tax in view of Circular dated 24-05-2010 - the demand of ₹ 5,88,991/- with respect to work done in the nature of internal and external wiring in the residential houses/duplexes, there is no element of any construction of a commercial/residential complex as defined under the provisions of the Service Tax Act. Accordingly, demand of ₹ 5,88,991/-, is also set aside - for work done for Indian Railway Welfare Organization, in view of the fact that the work had been completed before 30-10-2004, there is no question of levy of any tax for the same under ECIS, which have become taxable with effect from 01-06-2005 - there is no element of suppression, fraud or any mala-fide on the part of the appellant and they have not concealed information or made any misstatement of facts before the Revenue. At the very first instance, the proprietor of the appellant has deposited the admitted tax liability and the issue being wholly interpretational, extended period of limitation is not attracted - appeal allowed - decided in favor of appellant-assessee.
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2017 (3) TMI 1456
Penalty - reverse charge - For the purpose of raising capital, appellant have received the services of non-resident institutions i.e. a person who has established a business or has a fixed establishment in a country other than India - The period in dispute is 18.04.2006 to 30.11.2007 - Held that: - recipient in India became liable to service tax for the service received from abroad only from 18.04.2006, after the enactment of Section 66A - this was the first time, since 18.04.2006, that the services provided by the appellant was brought under the service tax net. This was the initial period and first year, hence, the appellant was not aware of the provisions. However, soon after knowing about the liability, the tax was paid along with interest - Moreover, the appellant is an Agency of the government under Article 12 of the Constitution and no individual interest is involved. When it is so, there is no justification for levy of penalty - reliance placed in the case of INDIAN NATIONAL SHIPOWNERS ASSOCIATION Versus UNION OF INDIA [2008 (12) TMI 41 - BOMBAY HIGH COURT] - appeal allowed - decided in favor of assessee.
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2017 (3) TMI 1455
Business Auxiliary Service - Held that: - this issue had come up for consideration before this Tribunal in the case of Ferro Scrap Nigam Ltd. vs CCE, Raipur, [2014 (1) TMI 1049 - CESTAT NEW DELHI], where it was held that the said activity does not amount to manufacture and such order stands accepted by the Revenue, it has to be held that there was no production of goods.
Cargo Handing Service - Held that: - the same is squarely covered in favour of the assessee-Respondents by the ratio laid down in the case of Commissioner of Central Excise vs Manoj Kumar, [2012 (9) TMI 941 - ALLAHABAD HIGH COURT], where The sugar bags were not to be loaded or unloaded for any movement outside the factory on public roads, on any ships, aeroplane or trucks for onward movement to any destination. The activities will fall within the meaning of transportation of goods, and would certainly not be included in the definition of Cargo Handling Service which is the service exigible to Service tax.
Appeal dismissed - decided against Revenue.
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2017 (3) TMI 1454
Refund claim - denial on the ground that the appellant has not submitted any document required under Rule 4A of the Service Tax Rules, 1994 and debit notes is not sufficient document for the purpose - Held that: - in the assessee’s own case, on the identical set of facts, the claim was already allowed - matter remanded to the original authority to decide the issue afresh after examining the documents which can be produced by the appellant again - appeal allowed by way of remand.
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2017 (3) TMI 1418
Condonation of delay - delay with explanation which is certainly less satisfying than required by law - Held that: - for that reason the claim of the State shall not be defeated as the claim is huge (about Rupees Sixty Six Crores approximately) and it would be against the larger public interest to reject the examination of the correctness of the judgment under appeal - we deem it appropriate to condone the delay subject to the condition that the appellant pays costs quantified at ₹ 2,00,000/- to the respondent - We also deem it appropriate to direct the appellant to identify the officers who are responsible for such inordinate delay and recover the amount of costs from them - delay condoned - appeal allowed.
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