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Service Tax - Case Laws
Showing 101 to 120 of 205 Records
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2017 (4) TMI 852 - CESTAT MUMBAI
Tour Operator Service - business of organizing outbound tours - case of appellant is that the service tax is destination based consumption tax and should be levied at the location where the services are consumed or in other words where the services are used - case of Revenue is that the services of “Tour Operator” was placed in Rule 3(1) (ii) of Export of Service Rules, 2005. As such, till the time the tour operator is located within India service would be deemed who have been provided within India.
Matter referred to larger bench with the following questions:
i) Whether the service that appellant are providing is taxable service under Section 65(105)(n) of the Finance Act as held by Tribunal in their own case or otherwise?
ii) Whether the appellant is said to be providing the said service within the taxable territory?
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2017 (4) TMI 806 - CESTAT ALLAHABAD
Imposition of penalty u/s 76 - appellant have paid Service Tax during the period December, 2006 to September, 2007, after delay of some days from the due date wherein from 01 day to 230 days - Held that: - there is no deliberate default or contumacious conduct on the part of the appellant. Rather the appellant have deposited almost 4 times the actual tax levy with the revenue and such excess amount, remained with the revenue, for substantial time before being adjusted in the subsequent return periods - for some and/or minor failure on the part of the appellant in depositing the tax on or before the due dates, penalty u/s 76 is not exigible - appeal allowed - decided in favor of appellant.
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2017 (4) TMI 805 - CESTAT MUMBAI
CENVAT credit - Outdoor Catering Services - Manpower Supply for Garden Maintenance Services - Maintenance and Repair Service of Sewage Treatment Plant - Held that: - the appellants had agreed to reverse the CENVAT Credit in so far as it pertains to the amount collected from the employees in respect of the Outdoor Catering Services - the credit for the period prior to 1.4.2011 is allowed to the extent, the incidence of such services is borne by the appellant not recovered from anybody else - so far as credit pertaining to period after 1.4.2011 is concerned, the appellants are entitled to take credit in so far as it relates to the burden of service borne by the appellant themselves and not recovered from any other party.
Garden Maintenance Service - Maintenance of Sewage Treatment Plant - Held that: - it is apparent that credit for the sewage treatment plant and for the garden maintenance cannot be denied as the same are statutory requirement for operating the Port.
Interest - Held that: - Interest was required to be paid on credit taken or utilized wrongly. Interest liability will accordingly be modified by original adjudicating authority as per the prevailing provisions of law.
Penalty - Held that: - it is a fit case for invocation of Section 80 of the Finance Act, 1994 and, therefore, penalty u/r 15 of the CCR, which in turn is penalty in terms of Section 76 or 78 of the FA, 1994, is set aside.
Appeal allowed - decided partly in favor of appellant.
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2017 (4) TMI 804 - CESTAT NEW DELHI
Penalty - imposition of simultaneous penalty u/s 76 and 78 of FA - The period involved in this case is from 01.07.2003 to 31.03.2009 - Held that: - Section 78 ibid was amended w.e.f. 10.05.2008 wherein the 5th proviso was appended thereto providing that if the penalty is payable under Section 78, provisions of Section 76 shall not apply. The effect of such amendment is that simultaneous penalty under both section 76 and 78 ibid cannot be imposed - such amendment cannot have the retrospective application in absence of any specific stipulation of that effect.
Penalty levied under both Section 76 & 78 upto 10.05.2008 is sustainable and thereafter from 10.05.2008 to 31.03.2009, penalty u/s 76 is not sustainable. The appellant has already deposited 25% of the penalty u/s 78 ibid. The remaining 75% of penalty shall stand waived - appeal disposed off - decided partly in favor of assessee.
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2017 (4) TMI 803 - CESTAT NEW DELHI
CENVAT credit - input service - GTA service for transportation of goods from the factory of the appellant to the buyers - whether appellant is liable to pay interest for the intervening period or not and in the facts and circumstances of the case, penalty is imposable on the appellant or not? - Held that: - the Cenvat credit account was lying unutilized and therefore, interest is not payable by the appellant - With regard to penalty, from April, 2010, there was an amendment in the Rules that the appellant was not entitled for Cenvat credit on the outward agency service, the appellant is not entitled to avail Cenvat credit on the transportation charges. In these circumstances, the penalty is imposable on the appellant.
The appellant has paid the amount of Cenvat credit before adjudication, the penalty is reduced to 25% of the duty amount.
Appeal disposed off - decided partly in favor of assessee.
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2017 (4) TMI 802 - CESTAT NEW DELHI
Works contract - claim of assessee is that The entire work was completed on 4-4-2007. The service tax came into existence on the residential services w.e.f. 1-6-2007, therefore service not taxable - Held that: - when the entire cause of action was completed in the month of April, 2005 then the service tax on the works contract is not leviable which came into existence on 1-6-2007 - The BDA is Government agency so the genuineness of the bills and contract signed by and raised against BDA cannot be doubted - demand not sustainable - appeal dismissed - decided against Revenue.
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2017 (4) TMI 801 - CESTAT NEW DELHI
Abatement under Tour Operators service - N/N. 1/2006-S.T., dated 1-3-2006 - denial on the ground that condition of the notification regarding non-availment of Cenvat credit has not been fulfilled by the appellant - Penalty - Held that: - in absence of non-fulfilment of the said conditions provided in the notification, the benefit of abatement contained therein should not be available to the appellant.
The amount of service tax along with interest was paid by the appellant before adjudication of the matter and availment of Cenvat credit at the material time was due to bona fide belief that the benefit of abatement, the provisions of Section 80 ibid can be invoked for non-imposition of penalty u/s 76 ibid.
Appeal allowed - decided partly in favor of appellant.
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2017 (4) TMI 756 - CESTAT MUMBAI
CENVAT credit - denial on the ground that services were provided by MSM Singapore therefore MSM India has neither provided any service nor required to obtained the registration and also not required to pay any service tax - With effect from July, 2012 MSM-India took service tax registration by giving the care of address of MSMPL, its sole agent in India. It does not have any physical establishment, infrastructure or equipment in India for production and up-linking of programs, i.e. IPL, T.V. Serials 85 Films. - case of Revenue is that appellant is hot a service provider as the service was provided by their Singapore entity therefore being non service provider they are not entitle for the Cenvat credit.
Held that: - There is no dispute that the entity in India and Singapore is the same entity i.e. M/s. MSM Satellite (Singapore) Pte. Ltd therefore the service provider is the same company even though the service was provided from different location.
It is admitted fact that even though if the contention of the Revenue is accepted that services were provided by MSM Singapore, but it is also a fact that services were received in India therefore service per se is taxable and the government is legally required to collect the service tax on such services and it had indeed collected. Therefore service tax even though paid by MSM Singapore through their office in India discharged the service tax payment of services tax cannot be disputed. In such a situation Cenvat credit is legally admissible to the appellant - once registration was granted by the department and the service tax was collected consequent Cenvat credit cannot be denied.
As per the service tax provisions the service tax liability is based on the place of consumption, therefore in the present case not only the services provided in India but also consumed in India therefore place of provisions is India only. Hence service tax registration obtained by M/s. MSM Satellite (Singapore) Pte. Ltd in India is absolutely in order.
Extended period of limitation - penalty - Held that: - entire activity was in the knowledge of the department as the appellant vide their letter dated 24-5-2012 had made detailed representation to the CBEC to seek continue deemed broadcaster status of MSMPL and CBEC when not responded, appellant approached for registration dated 2-7-2012 wherein they have set out detailed reason for seeking registration and also stated that they will be paying service tax on distribution and claiming input service credit. In this fact there is no suppression of facts on the part of the appellant with intent to evade payment of duty - demand of extended period is not sustainable, hence equal amount of penalty u/s 11AC being consequential will also not sustain and same is set aside.
As regard penalty imposed upon BCCI on the ground that they have fraudulently passed on Cenvat credit, availment of Cenvat credit by M/s. MSM Satellite (Singapore) Pte. Ltd is legal & correct, the consequential penalty does not survive. Moreover, the payment of service tax made by BCCI is absolutely legal & correct firstly for the reason that being the payment of service charges in Indian rupees the transaction is not of export, Secondly even it is presumed as export it is option of service provider, to opt for payment of service tax on output service or not. In this position, imposition of penalty upon BCCI and on it's officials is absolutely incorrect and illegal.
Appeal allowed - decided in favor of appellant.
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2017 (4) TMI 755 - CESTAT AHMEDABAD
Stay of order - Refund claim - delay in filing appeal - Section 103 of FA, 1994 - Held that: - it is apparent that the enabling provision for claiming the refund of service Tax does not prescribe anything to meet the eventuality of delay in filing the refund. In other words, it does not confer jurisdiction on the sanctioning authority to condone the delay - Revenue’s stay application allowed - decided in favor of Revenue.
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2017 (4) TMI 754 - CESTAT MUMBAI
CENVAT credit - case of Revenue is that credit pertain to 'exercise equipment', which being classifiable under chapter 95 of the Schedule to the CETA, 1985, is not capital goods within the meaning of rule 2 (a) of CCR, 2004 and hence not allowable - Held that: - 'exercise equipment' is, indeed, utilised as input for rendering taxable service and that the duty paid on this equipment is permissible as CENVAT credit, irrespective of whether it was initially claimed as 'capital goods.' Accordingly, the credit has been taken in accordance with the law and cannot, therefore, be denied as sought by Revenue. There is thus no justification for disallowing this credit and for restoration of penalty as proposed in the grounds of appeal - appeal dismissed - decided against Revenue.
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2017 (4) TMI 753 - CESTAT NEW DELHI
Suo motu adjustment of tax - the payment of excess service tax paid had been adjusted by the appellant for future payment - Held that: - during the relevant period i.e. April, 2006 to September, 2006, there is no bar of excess service tax paid by the appellant for adjustment.
The only reason of denial of the adjustment by the ld. Commissioner (Appeals) is that as per amendment in Service Tax Rules w.e.f. 1-3-2007, such adjustment is not permissible. Admittedly, these rules have come into force after the impugned period. Therefore, such amendment to the rules is not applicable to the facts of this case.
Appeal allowed - decided in favor of assessee.
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2017 (4) TMI 752 - CESTAT MUMBAI
Maintainability of application - Rectification of Mistake - Held that: - Provisions of Section 35C(2) mandates that any application for ROM needs to be filed within six months from the receipt of the said order - The application for ROM in this case has been filed on 1-8-2016 which is almost after a year after receipt of the certified copy of the order. On the ground of limitation only, the application for ROM filed by the Revenue is dismissed - decided against Revenue.
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2017 (4) TMI 751 - CESTAT KOLKATA
Penalty - whether penalty u/s 76 of the FA, 1994 is required to be imposed upon the appellant when Service Tax involved, along with interest, was paid by the appellant before the issue of SCN? - Held that: - Once full disclosure of tax liability has been made in the ST-3 Returns then it cannot be said that appellant had any motive to evade payment of Service Tax. At the same time a penalty provided u/s 76 of the FA, 1994 cannot be interpreted to mean that in each and every case of delayed payment penalty is required to be imposed when entire tax liability required to be paid has been fully disclosed in the ST-3 Return - penalty set aside - appeal allowed - decided in favor of appellant-assessee.
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2017 (4) TMI 750 - CESTAT CHANDIGARH
Cenvat credit - Commission paid to their overseas agent under reverse charge mechanism - N.No. 30/2004-C.E., dated 9-7-2004 - Penalty - Held that: - On export of goods no duty is payable by the assessee although the goods manufactured by the appellant is dutiable, therefore, merely, claiming benefit of Notification No. 30/2004 ibid, the appellant cannot be denied the Cenvat credit on input/input services. The appellant cannot be put on adverse position by way of Notification No. 30/2004 - Decided in favor of the assessee.
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2017 (4) TMI 705 - CESTAT NEW DELHI
Clearing & Forwarding Agency Service - case of appellant is that pursuant to the agreement entered with various client companies, the goods were consigned by them (clients) to the godown of the appellant and the appellant merely forwarded the goods to the persons as instructed by the principals, in the whole exercise of handling the goods, there was no clearing of goods by the appellant from the factory of the clients and thus, such activity will not fall within the ambit or scope of Clearing & Forwarding service for levy of service tax - Revenue claims that appellant has undertaken various activities as per the instructions of its clients; such activities, under the agreements, confirm to both clearing as well as forwarding of goods.
Held that: - to fall under the purview of taxable service, both clearing and forwarding activities should be provided by the service provider. This fact is evident from the word 'and' used after the word 'clearing', but before the word 'forwarding' in clause (j) of Section 65 (105) ibid. Thus, the word 'and' placed in between the words 'clearing' and 'forwarding' should be considered in a conjunctive sense.
The goods were consigned by the principals to the appellant’s premises and the appellant did not undertake any clearing activity. Since the appellant is not undertaking the activities of both clearing and forwarding, service tax would not be leviable on the activity of mere forwarding and other incidental and ancillary activities, with reference to goods.
Appeal allowed - decided in favor of appellant.
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2017 (4) TMI 704 - CESTAT NEW DELHI
Site formation service - contract for production, Drilling & Associates Work in Underground Sindesar Khurd Mine - case of appellant is that impugned order failed to examine the limited scope of definition of site formation service and when several activities are undertaken, ultimately leading to mining then the gamut of activities cannot be taxed under site formation service - Held that: - the activities of services under consideration are to be treated as an activity auxiliary to the mining, their contract being indivisible contract. Such services are not taxable under the category of site formation clearance service, but they would be covered under the category of mining service, which has become taxable w.e.f. 01.06.2007 only - CESTAT, Delhi in the case of M/s.Aravali Construction Co. Pvt. Ltd. vs. CCE, Jaipur-II [2016 (8) TMI 675 - CESTAT NEW DELHI] has held that such services are not covered under the category of site formation and clearance, excavation and earth moving and demolition - service tax demand of ₹ 21,58,467/- under the category of site formation service cannot be sustained and is hereby dropped.
Chargeability of the value of free supplies which include electricity and other items - appellant case is that it is only consideration paid which is taxable and not any material supplied for use during the course of rendition of service - Held that: - the issue is covered in favour of the appellant by the Larger Bench decision in the case of Bhayana Builders P. Ltd. [2013 (9) TMI 294 - CESTAT NEW DELHI (LB)], where it was held that free supplies made by the service receiver shall not be added to the value of the services - the demand of service tax of ₹ 44,66,679/- confirmed on the free supplies, which includes the value of electricity and other items is not sustainable and is hereby dropped.
Appeal allowed - decided in favor of appellant.
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2017 (4) TMI 703 - CESTAT NEW DELHI
Business Auxiliary service - “pouring fees” from Pepsi, the soft drink company with whom they have a contractual arrangement for display and sale of various products of the client - Held that: - pouring fees as received by the appellant cannot be considered as a discount for sale transaction or as a payment for non-compete reason as given by the appellant. The indication is that it is more in the nature of fee received for promotion of Pepsi products - there is no merit in the appellant’s plea regarding non-taxability of the said consideration received by them.
Extended period of limitation - penalty - Held that: - even on enquiry the appellants did not take any effort to get the issue clarified except seeking advice from Pepsi. When the appellants were showing and discharging service tax on receipts for various promotional activities it is apparent that significant portion of receipt under the category of ‘pouring fees’ received for such activities should have been included in the tax returns during the material time - extended period and penalty rightly imposed.
Appeal dismissed - decided against appellant.
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2017 (4) TMI 702 - CESTAT NEW DELHI
Business Auxiliary service - empanelment fee - charge-ability to service tax - Held that: - for every event for which the appellant gives their auditorium on hire, they are collecting empanelment fee from the respective vendors. From the arrangement, it is evident that the business of Vendors’ gets promoted by the appellant for which they are collecting the said fee. The same would be covered by the definition of BAS as defined under Section 65(105) (zzb) read with Section 65(19) of the FA, 1994 and, therefore, the amounts collected as empanelment fee would be chargeable to service tax under BAS - In order to quantify the confirmed demand for normal period the matter is remanded to the original adjudicating authority.
Extended period of limitation - Held that: - there has not been any evidence available on record to state that the appellant suppressed the facts from the Department with the intention to evade the service tax on the empanelment fee collected by them - the extended period in this regard cannot be invoked u/s 73(1) of the FA, 1994.
Appeal is partly allowed and matter remanded for quantification of demand.
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2017 (4) TMI 701 - CESTAT NEW DELHI
Maintainability of appeal - time limitation - Held that: - in view of the affidavit submitted by the appellant stating that the adjudication order was not received by the appellant prior to 25-6-2010, there is no other option, but to accept the submission of the appellant that the adjudication order was received by it on 25-6-2010 and thereafter, within the stipulated time frame provided in Section 85 ibid, the appeal was filed before the Commissioner (Appeals). Thus, there is no delay in filing the appeal before the Commissioner (Appeals) - appeal allowed by way of remand.
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2017 (4) TMI 700 - CESTAT NEW DELHI
Rebate claim - GTA service for transportation of export consignment - Clause 3(b) of N/N. 41/2012-S.T - reverse charge - rejection on the ground that exporter had paid the service tax under reverse charge mechanism - Held that: - The N/N. 41/2012-S.T. has been issued in terms of Section 93A of the Fa, 1994. The notification provides for grant of rebate by way of refund of the service tax paid on the specified services used for export of goods. It is nobody’s case that the GTA services for which the appellant has claimed rebate of service tax under the notification has not been used for export of goods. Consequently, there is no doubt that the appellant falls within the gamut of the notification whose stated purpose is to grant refund of service tax on services used for export - It is not in dispute that the service tax was paid by the appellant and such services have been used for export of the goods by the appellant, the rebate is required to be paid to the appellants - appeal allowed - decided in favor of appellant.
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