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Service Tax - Case Laws
Showing 221 to 232 of 232 Records
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2017 (3) TMI 69
Refund claim - denial on account of nexus and that no export has taken place from the Gurgaon unit (branch office), as such, no refund was allowed on input services availed at Gurgaon unit - Held that: - the appellant has been raising the export invoices only at Bangalore unit as it has a centralized accounting and billing system in force and the same is permissible u/r 4 of the Service Tax Rules, 1994 - Further in the SOFTEX return, only export of software services is disclosed, as the Bangalore unit is registered as a software technology park of India. The BAS provided from Gurgaon unit is not disclosed in the monthly SOFTEX filed with the STPI as the Gurgaon unit is not registered with Software Technology Park. Therefore, only on this ground the refund is wrongly rejected.
As far as lack of nexus with regard to the input service viz., parking and cafeteria rent; building maintenance and housekeeping; book keeping; financial services; internet and telephone services, all these services are necessary for running of the business and are held to be input services - these input services fall in the definition of input service and the appellants are entitled to refund of the same.
Appeal remanded with a direction to the original authority to consider all the documents which may be produced by the appellant in proof of export of service from their Gurgaon unit - appeal allowed by way of remand.
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2017 (3) TMI 68
Rent-a-car service - abatements - the notification was not mentioned in the ST 3 return - linkage for the consideration to the services rendered previously - payment of Service Tax at the abated rate during the period post 1.4.2006 - appellant claim that these are relatable to services rendered prior to 1.4.2006 - Held that: - the consideration for services rendered prior to 1.4.2006 were also received after 1.4.2006 and applicability of abated rate for the said receipts cannot be questioned - the proceedings were initiated only based on ST 3 return filed which contain details of consideration received and tax paid. ST 3 return was later revised twice for correction of figures, not relating to present dispute - appeal allowed - decided in favor of appellants.
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2017 (3) TMI 67
Tax liability on reverse charge basis - Held that: - the provider of service from foreign country should be identified. In the present case, there is no indication of the identity of person who provided the BSS service - appellant could not submit the details and evidences due to various reasons - appeal allowed by way of remand.
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2017 (3) TMI 66
Refund claim - N/N. 27/2012-CE(NT), dated 18.06.2012 - rejection on the ground of jurisdiction - export of service from an unregistered premises - Held that: - One of the condition of the notification is that to get refund application is to be made to the jurisdictional authority in whose jurisdiction registered premise of the service provider exists. It follows that in absence of registration, identity of the jurisdictional authority is not ascertainable - Notification being part of legislation, is to be strictly construed for grant of the fiscal benefit and burden to prove that grant is permissible lies on the claimant. The admitted case of the respondent being non-registration of the premises from which exportable services was provided, appellant failed to discharge its burden of proof and also did not fulfill the conditions of the notification - appeal allowed - decided in favor of Revenue.
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2017 (3) TMI 65
Recovery of short paid tax from legal heir, on death of assessee - Held that: - reliance was placed in the case of Shabina Abraham v. Commissioner of Central Excise & Customs [2015 (7) TMI 1036 - SUPREME COURT], where an individual proprietor has died through natural causes and it is nobody’s case that he has maneuvered his own death in order to evade excise duty - the High Court went into morality and said that the moral principle of unlawful enrichment would also apply and since the law will not permit this, the Act needs to be interpreted accordingly - the demand of duty and penal action are not legal and proper - appeal allowed - decided in favor of appellant.
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2017 (3) TMI 21
100% EOU - Refund claim - Rule 5 of CCR, 2004 - export of services - denial on the ground that the services rendered do not qualify the term Export as well as on the ground that Some of the input services do not qualify the definition of input service - Held that: - the Business Auxiliary Services rendered by the appellant, to their principal in Hong Kong is to be considered as, service provided from India and used outside India - the decision in the case of Gap International Sourcing (India) Pvt. Limited vs. CST, Delhi [2014 (3) TMI 696 - CESTAT NEW DELHI], followed as the issue was similar where the the Tribunal has gone on to decide that the services rendered to principal in USA, who had paid for the services in foreign exchange, has to be considered as export of service.
Input services - Held that: - the Tribunal decision in the case of Convergys India Pvt. Limited [2009 (5) TMI 50 - CESTAT, NEW DELHI], relied in which identical issue had also been examined and was held that that there cannot be two different yardsticks, one for permitting credit and the other for eligibility for granting rebate. Whatever credit has been permitted to be taken, the same are permitted to be utilized and when the same is not possible there is provision for grant of refund or as rebate - refund allowed.
The appellant will be entitled to refund under Rule 5 of Cenvat Credit Rules, 2004. However, for verification of receipt of foreign exchange and connected matters, the case is remanded to the Original Adjudicating Authority - appeal allowed by way of remand.
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2017 (3) TMI 20
Maintainability of the appeal - Held that: - We note that as pointed out by the learned Counsel for the appellant partnership firm and partner are different for legal treatment - In the title of the appeal, the respondent name is mentioned as "M/s L.R. Sharma". The full title of M/s “L.R. Sharma” & Co. is not mentioned. On this ground alone, the respondent wants the appeal to be held as non-maintainable - The title of the appeal mentions "M/a L.R. Sharma". M/a is short form of Messers, i.e. plural of Mr (Mister). Normally it is used for addressing a firm, association of persons, a partnership. Viewed with these facts we find there is no reason to hold the appeal as non-maintainable on this ground.
We have heard the learned AR who agrees that the amount involved is substantial and the matter can be taken up for early disposal - We find merit in the prayer made by the applicant for early listing and hearing of the case - Appeal allowed.
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2017 (3) TMI 19
Levy of Penalty - site formation and clearance, excavation services - Held that: - I find that the Hon'ble High Court of Karnataka in the case of CST, Bangalore vs. Prasad Bidappa [2012 (8) TMI 749 - KARNATAKA HIGH COURT], has held that when the assessee deposits the entire duty, the proceedings cannot be started against him for imposition of penalties in terms of section 73 of the Act. I also find force in the plea that as the matter was under confusion and was only clarified subsequently, the provisions of section 80 would be attracted, thus not calling for any penalty - Appeal disposed of.
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2017 (3) TMI 18
Demand of service tax on amount paid under Joint development agreement (JDA / MOU) - sharing of revenue and expenses - Development of Windfarm and related activities - The respondent entered into an MOU with M/s. Vestas-RRB for sharing of work and responsibilities in operationalising the said wind farm - whether it is correct to hold that the respondents were providing various taxable services like erection, commissioning or installation services, Commercial or industrial construction services, scientific and technical consultancy services to M/s. Vestas RRB?
Held that: - There is no agreement to provide or receive service between the parties in the MOU. Both the parties are mutually interested in attracting the investors to invest in the wind farm and to operationalise 25 wind mills for mutual benefit - the nature of service taxable classification and consideration attributable to such individual services have not been indicated at all - The amount received from M/s. Vestas RRB in terms of the MOU was summarily considered as a consideration for taxable service without examination and pointing out the nature of service and its classification - appeal dismissed - decided against Revenue.
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2017 (3) TMI 17
Benefit of N/N. 13/2010-ST dated 27.02.2010 - denial on the ground that the benefit not available to service recipient - exemption in relation to on-line information and database access or retrieval services and business auxiliary services provided by News Agency - Held that: - the legal fiction cannot be restricted only to collection of tax without applying any concession of the notification applicable thereto when the conditions of the said Notifications are fulfilled by the recipient of such service.
Section 66A stipulates that taxable service shall be treated as if provided by the recipient of service in India and accordingly, all the provisions of Chapter V shall apply, here the tax liability is put on the appellant on such legal fiction. It is not legally tenable to hold that such legal fiction will have limited application only for payment of service tax and not with reference to any concession available to such service tax.
Appeal allowed - decided in favor of appellants.
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2017 (3) TMI 16
Refund - Cenvat Credit - Change in the name of assessee - Business Auxiliary Service and Business Support Services - Notification 5/2006 NT dated 14.04.2006 - Held that: - I am of the opinion that the impugned order is not sustainable in law as the appellant has given sufficient documentary evidence and the decisions of the Tribunal in support of his claim.
As far as first ground on which cenvat credit was denied is totally wrong because the change of name does not make the appellant ineligible to claim cenvat credit and more so it has been informed to the Department well in time. Secondly, with regard to Management, Maintenance or Repair Service, the lower authority has wrongly considered it as an export of service whereas it is import of service as evidenced by the Service Tax Returns - Appeal allowed by way of remand.
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2017 (3) TMI 15
Transportation charges - transportation of sugarcane from the ‘Cane Collection Center’ to the Sugar factory - Held that: - there being no suppression or contumacious conduct on the part of the appellant, the extended period of limitation is not invocable - on merits also, the appellant have only facilitated the farmer in transport of the sugarcane to their factory gate, which was otherwise the obligation of the farmer. Accordingly, no Service Tax was payable on the transport charges incurred by the appellant - appeal allowed - decided in favor of appellant.
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