|
Advanced Search Options
Service Tax - Case Laws
Showing 61 to 80 of 232 Records
-
2017 (3) TMI 1221
Taxability - Renting of immovable property service - vacant land - effective date of levy of tax - whether the service rendered was liable to be taxed in the hands of the appellant from 1st June 2007 merely because of the retrospective effect of the addition of vacant land to the explanation defining ‘immovable property'? - Held that: - There is no doubt that as on the date of imposition of levy, the appellant had not indulged in any taxable activity. Even when the amendment came into effect and even if retrospectively effective the transaction between the appellant and the lessee could not be described as that of a lease of vacant land. Consequently, the levy of tax on the rental income derived by the appellant from the lessee is beyond the scope of taxability - appeal allowed - decided in favor of appellant.
-
2017 (3) TMI 1220
Nature of Activity - provision of services or mere profit sharing arrangement - Activity of refilling the nitrogen has been sub contracted by the appellant to five contractors who are their sales agents - whether the activities of the appellant would fall within the ambit of business auxiliary service (BAS)? - Held that: - the agents of the appellant are approached by the customers who had purchased the only on reference and goodwill of the appellant. Sharing of consideration is also on transaction basis. The amount received by the appellants, though called as “profit sharing” is only a consideration from the agents for promoting the business at agreed terms and is therefore very much a business auxiliary service and the appellants will then become liable to discharge, and tax as applicable thereon - appeal dismissed - decided against appellant.
-
2017 (3) TMI 1219
Rejection of refund claim - refund claim has been rejected on the ground that tax is indeed leviable - the case of appellant is that the dispute pertains to the rejection of refund claim and not to a decision on taxability. The latter would flow from a demand u/s 73 of FA, 1994 and no such challenge appears on record. Nor is there any material on record to suggest that notice for such demand was issued - Held that: - Just as a claim for refund on ground of non-taxability should be accompanied by a decision in appeal upholding that contention, a rejection of claim that tax not due was paid incorrectly would have to be backed by an order of assessment - If the tax or interest was due, tax thereon should have been recovered, in the absence of applicability of section 73(3), by issue of notice u/s 73(1). An order of rejection of refund claim u/s 11B is not the proceedings to determine taxability - appellant is justified in claiming that the demand under section 73(1) is mandated to complete the proceedings and would necessarily have to be followed by an adjudication order that is legally challengeable. By not issuing a notice and a consequential order, the assessee was also denied the opportunity to challenge the contention of Revenue on taxability - the impugned order rejecting the refund claim on ground of taxability is not sustainable as taxability has not been asserted by appropriate process and is set aside - matter is restored to the original authority to reconsider the refund claim - matter on remand.
-
2017 (3) TMI 1218
Short payment of tax - ambulances provided to the Port Trust - The impugned order is contested on the ground that ambulance service had not been included in any of three notices and that abatement of 90% could not have been extended - Held that: - the findings on the issue of taxability are too meagre for a decision to be taken in these proceedings - it would be appropriate to remand the matter to the first appellate authority to hear the matter afresh - appeal allowed by way of remand.
-
2017 (3) TMI 1217
Refund claim - programme producers service - refund claim allowed on the ground that the service was taxable as “commercial use or exploitation of an event service” which was incorporated in FA, 1994 only w.e.f. 1st July 2010 and hence not liable to tax for the prior period - Held that: - reliance placed in the case of Royal Western India Turf Club Ltd v. Commissioner of Service Tax, Mumbai [2012 (11) TMI 526 - CESTAT, MUMBAI], where it was held that the CBEC circular 334/1/2010-TRU dated 26-2-2010 clarified the position as The proposed service now seeks to tax the amount received by the person or organization, who permits the recording and broadcasting of the event from the broadcaster, or any other person, who seeks to commercially exploit the event - refund justified - appeal dismissed - decided against Revenue.
-
2017 (3) TMI 1159
Bill printing service to telecom companies - whether business auxiliary service or not? - Held that: - The appellant/assessee in the present case is not involved in any calculation of quantification of the bill amount, details to be presented in the bill and regarding correctness of the said details in the bill. In other words, the appellant/assessee is not responsible for any details in the bill or authenticity of the same. They are simply printings in a preformatted design the telephone bills based on the data provided by the telecom company and give the printed bills in envelops, after bunching in convenient groups, for further follow up by the telecom companies - such activity cannot be considered as business auxiliary service
One more point to note is, that sub-clause (vii) talks about incidental or auxiliary service to any one of the activity in sub-clauses (i) to (vi). These sub-clauses talk about promotion or marketing of service provided by the client or customer care service provided on behalf of the client, provision of service on behalf of the client - the appellant/assessee is nowhere connected with promotion of service or provision of service on behalf of the telecom companies.
Appeal allowed - decided in favor of appellant.
-
2017 (3) TMI 1158
Imposition of penalty u/s 76, 77 and 78 of the Act - invocation of section 80 - Bonafide belief in non-payment of tax - Held that: - non-payment of service tax in time cannot be construed as on account of willful default, but it was advised by their Chartered Accountant, after analyzing the law that service tax may not be applicable to the appellant as they were neither a corporate entity nor in the list of Register of Architects maintained u/s 23 of the Architects Act, 1972 - later being directed by the Department, in September 2002 the appellants discharged the entire service tax along with interest - there was a bona fide belief harboured by the appellant in not discharging the service tax during the relevant period - fit case for invocation of Section 80 of the FA, 1994 - appeal allowed - decided in favor of appellant.
-
2017 (3) TMI 1157
Demand of service tax - The department was of the view that the respondent is liable to pay service tax on account of four contracts - Held that: - it appears that the respondent was regularly filing ST-3 returns and wherever the tax was collected, the same was deposited honestly - The classification of a taxable service is determined, based on the nature of service provided and that too the predominant part of the service if it comprises of multiple activities that could individually be discerned of having a taxable nature - appeal dismissed - decided against Revenue.
-
2017 (3) TMI 1156
Taxability of excess amount collected in the name of reimbursement - “over and above” amount - Rule 5(2) of the Service Tax (Determination of Value Rules), 2006 - whether the amount collected from the client other than the commission and brokerage is taxable or not? - Held that: - the amendment came in the Service Tax Determination of Valuation Rules, 2006 w.e.f. 18.4.2006. Prior to it, the appellant is entitled for the benefit but the same was not provided by the lower authority. However, post period to 18.4.2006, the appellant is liable to pay the service tax on the “over and above” amount collected from the clients but not deposited to the Govt. exchequer - for the period prior to 18.4.2006, the lower authority has not given the credit to the appellant for which the appellant is entitled. Hence, we modify the impugned order and allow the benefit prior to the period 18.4.2006. For the post period, we confirm the order of the lower authority - appeal disposed off - decided partly in favor of appellant.
-
2017 (3) TMI 1155
GTA service - reverse charge mechanism - whether the appellant, being a limited company, is required to discharge service tax liability for the period 01.01.2005 to 31.12.2009 in respect of amounts paid by them to two transport companies for movement of material i.e. clinker from their own jetty to the cement manufacturing premises? - Held that: - consignment note should have specific particulars, the provisions of Section 65(50b) talks about the issuance of the consignment note - consignment note is misplaced as in this case the transporting companies have only raised invoices for transportation of cement clinkers as per the contract which did not satisfy the requirement of the consignment note and the responsibility cast for issuing the consignment note is not met to hold that Goods Transport Agency Services are rendered - demand set aside - appeal allowed - decided in favor of appellant.
-
2017 (3) TMI 1154
Cargo handling services - unloading of trucks/trailers, stacking them in godown and loading of trucks against delivery challans, maintaining all the records/ registers, formats and submission of daily/ periodical reports in respect of dumps of M/s Binani Cement Limited - whether the services rendered are to be treated as C&F agent service or cargo handling service? - Held that: - the issue is covered in favor of the appellant as per the ratio laid-down in the case of Narottam & Company vs. CCE, Jaipur [2013 (8) TMI 291 - CESTAT NEW DELHI] where it was observed that the appellant only providing the labour for loading of cement at the rail heads, loading into the trucks for transportation to the storage godown of M/s Binani Cement and thereafter unloading at the godown and its stacking and thereafter arranging the dispatch of the cement as per the directions of M/s Binani Cement, that they also maintained a record of the receipt and dispatch, that the activity of the appellant is only of forwarding and not clearing and forwarding and, hence, the same is not taxable - appeal allowed - decided in favor of appellant.
-
2017 (3) TMI 1153
Classification of services - BAS or C&F - sale of cement by working under the cover of purchase invoices - classified under Business Auxiliary Service - demand raised by Revenue by classifying the service under clearing and forwarding agent service u/s 73(1) of the FA, 1994 - Held that: - Whatever distribution is made by the appellant for that the collective responsibility lies with the appellant. But facts remains that when the principal has taken a responsibility for safe custody, transportation, damage, demurrage, rent and theft of the cement then certainly, the substantial ownership lies with the principal. When it is so then we find no reason to interfere with the impugned order where the demand is rightly raised u/s 73(1) of the FA, 1994 - appeal dismissed - decided against appellant.
-
2017 (3) TMI 1106
Business auxiliary service - whether the amounts received from Coca Cola under the heads “Sales Target Incentive” and “Advertisement and Publicity expenses” are covered under business auxiliary service? - The SCN alleges that the appellant has received the aforesaid amount from the brand owners to promote and market the brands of the brand owners - Held that: - BAS is an omnibus service covering within its fold various types of services. It has not been indicated either in the Show Cause Notice or Order-in-Original under which sub clause the appellant’s service is being charged to service tax. By process of elimination, we conclude that it is likely to be under “Promotion or marketing or sale of goods produced or service provided by the client”; we note that no investigation has been undertaken by Revenue into the reasons for which appellants have received the payments. Hence, it is not very clear why the appellant has received the said amounts from M/s Coca cola
When we look at the clause (i) the definition of the BAS, which covers promotion or marketing or sale of goods produced or service provided, we fail to see how the promotion of the brand name can be brought under the above clause.
A new service stands introduced with effect from 1.07.2010, which covered specifically “Brand Promotion Service” - Even if a view is taken that the service rendered by the appellant is covered under the new service w.e.f. 01.07.2010, the same cannot be charged to service tax under BAS for the earlier period - this is established by the Tribunal in the case of Sourav Ganguly vs. Union of India [2016 (7) TMI 237 - CALCUTTA HIGH COURT].
There is no justification for the demand of service tax raised under BAS for the period 2006-07 to 2009-2010 - appeal allowed - decided in favor of appellant.
-
2017 (3) TMI 1105
Validity of show cause notice - extended period of limitation - Whether the ingredients for resort to proviso to section 73(1) of FA, 1994 are present to obviate the contention that section 73(3) of FA, 1994 should have been resorted to for closing the matter?
Held that: - the service tax authorities did commence correspondence with the appellant for payment of remaining dues only following the admission in the service tax returns that the said amount was outstanding. In these circumstances, there can be no greater claim to candidness than that demonstrated by appellant and there is no justification for alleging, or finding, that they had suppressed or misdeclared any relevant material. With such admission of outstandings, intent to evade tax is also an allegation that would not sustain - The ingredients for invoking the extended period, and thus also penalty u/s 78 of FA, 1994, are clearly absent. This is a fit case of closure of the proceedings u/s 73(3) of FA, 1994, without any of the penalties, as tax and interest had been paid on ascertainment and communication from service tax authorities - appeal allowed - decided in favor of appellant.
-
2017 (3) TMI 1104
Commercial Training or Coaching Service - demand - Held that: - Since solely based on the statement given to the income tax department, the service tax department proceeded against the appellant and in view of the fact that the income tax demand raised by the department has been set aside/ settled by the Income Tax Tribunal, we are of the view that the present demand cannot be sustained against the appellant - Further, the department has not produced any evidence to show that the appellant has received any unaccounted for money towards providing the taxable service. Thus, the service tax demand cannot be confirmed without any tangible evidence - appeal allowed - decided in favor of appellant.
-
2017 (3) TMI 1103
Levy of penalty - invocation of section 80 - Works Contract Service - tax paid on being pointed out - ignorance of law was given as reason for non-payment of tax - Held that: - before adjudication of the matter, the appellant had paid ₹ 5,84,962/-, which has been appropriated in the adjudication order and the balance amount of tax alongwith interest was paid immediately after adjudication of the dispute. The authorities below have not specifically alleged/ concluded regarding the involvement of the appellant in any fraudulent activities with intent to defraud the Government Revenue. It is not the case of revenue that the appellant recovered the service tax amount from the service receiver and had not deposited the same with the Government Exchequer - benefit of Section 80 ibid should be extended to the appellant for non-imposition of penalty u/s 76, 77 and 78 ibid - penalty set aside - appeal allowed - decided in favor of appellant.
-
2017 (3) TMI 1102
Validity of SCN - incomplete information in SCN - whether the SCN have been issued without alleging short payment/non-payment of Service tax and/or is vague? - Held that: - the SCN is defective as it do not have or annexed the contents of letter dated 21.01.2009 issued by DGCEI to the office of Commissioner, Customs and Central Excise, Meerut-I. Non supply of copy of information received by DGCEI from EPFO or any other source, render the SCN vague - There is no allegation in the SCN that the appellant had filed wrong returns and returns filed have been found to be prima-facie wrong, without reference to the books of account maintained by the State Bank of India - SCN, based on incomplete information, not sustainable - appeal allowed - decided in favor of appellant.
-
2017 (3) TMI 1101
Refund claim - time bar - unjust enrichment - Held that: - u/s 11B of Central Excise Act, 1944, the amount claimed is required to be credited to the Fund unless the applicant is able to evidence that the incidence had not been passed on - The mere fact that the service tax amount have not been in the clients ledger account, and that the service tax amount paid has been accounted as an expenses in profit and loss account cannot override the factual position that whatever billing has been made is inclusive of service tax which is not shown separately. So there is no alternative but to infer that the service tax amount has been recovered from their clients and embedded in the billing amount - refund claim allowed on account of unjust enrichment - appeal dismissed - decided against Revenue.
-
2017 (3) TMI 1100
Services of laying pipelines and conduits - whether works contract or not - the appellant assessee had pleaded that the works of laying of pipelines for sewage etc. are not for commerce and trade and as such the same is exempted from service tax in terms of provisions of Explanation of Section 65 (105)(zzzza) of the Finance Act, 1994 - Held that: - the issue now stands settled by the Larger Bench of this Tribunal in M/s Lanco Infratech Ltd. [2015 (5) TMI 37 - CESTAT BANGALORE (LB)] wherein it has been held that such works executed by the appellant in the nature of sewerage works, laying of pipe and for water supply falling under Explanation (ii) (b) fall under the definition of "works contract service" and were also exempted under the classification commercial and industrial construction service prior to 1/6/2007 - demand set aside.
Extended period of limitation - Held that: - the issue is wholly interpretational and thus the longer period of limitation is not invokable under the facts and circumstances.
Appeal allowed - decided in favor of appellant.
-
2017 (3) TMI 1099
Business Auxiliary Services - services of promotion and marketing/distribution of various products of M/s. B.S.N.L - demand - Held that: - the present matter is no longer res-integra and the same is decided in favour of the Respondent by the precedent decision of this Tribunal in the case of M/s South East Corporation Vs. Commissioner of Central Excise & Service Tax [2007 (5) TMI 111 - CESTAT, BANGALORE], where it was held that the said activity does not come within the ambit of BAS and hence, the demand is not sustainable - appeal dismissed - decided against Revenue.
........
|
