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Service Tax - Case Laws
Showing 121 to 140 of 205 Records
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2017 (4) TMI 699 - CESTAT HYDERABAD
CENVAT credit - duty paying invoices - the service provider did not remit the service tax collected from the appellant to the Central Government - Held that: - the service provider has not paid the said amount collected to the account of revenue. This definitely cannot be a ground to deny the credit to the appellant who has paid service tax and produced the invoices/hand written bills. Though it is stated in the impugned order that the hand written bills do not contain essential details, it is not stated as to what are the essential details in terms of Rule 4(A) of STR, 1994 that is required to make the invoices in order - appeal allowed - decided in favor of appellant.
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2017 (4) TMI 698 - CESTAT MUMBAI
Refund claim - denial on the ground that appellant has not co-related the payment to the service provider from the bank statement and in the absence of any cheque No., demand draft No., pay order, no co-relation is possible to ascertain the actual date of payment of service tax to the service provider - Held that: - there is a co-relation with payment made to service provider and also that claim is within one year of the payment made to the service provider, appellant is eligible for refund of the amount - these documents were enough to come to a conclusion whether the appellant had made any payment to the service provider or not. To that extent both the lower authorities have erred in coming to a conclusion that the refund claim filed by the appellant is not co-relatable with the input services and exports - appeal allowed - decided in favor of appellant.
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2017 (4) TMI 697 - KERALA HIGH COURT
Principles of natural justice - the assessee did not reply to the notice nor did he appear for personal hearing fixed - Held that: - this Court should not interfere with Ext. P2 order especially on account of the fact that the period for filing the appeal has already expired. That apart, the contention regarding violation of principles of natural justice is belied on the basis of the documents now made available - petition dismissed - decided against petitioner.
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2017 (4) TMI 651 - PUNJAB AND HARYANA HIGH COURT
Refund claim - rejection on account of Time Bar - Held that: - the respondent, filed an appeal for refund u/s 11-B of the Act, which was not necessary in view of the order of the Appellate Authority which had attained finality. The Commissioner (Appeals) also by mistake considered the appeal independently and by an order dated 31.03.2009, rejected the appeal - The Tribunal has imposed a cost of ₹ 10,000/- on the Assessing Officer personally for not having complied with the said order of the Appellate Authority dated 16.11.2001. There do not appear to be any mala fides on the part of the Officer. He passed an order which is incorrect. A mere incorrect order ought not to invite penal consequences if made bona fide - appeal dismissed being not maintainable.
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2017 (4) TMI 650 - UTTARAKHAND HIGH COURT
Works contract - Payment of service tax - the petitioner has already moved an application before the concerned authority which is pending - Held that: - Since the application of the petitioner is pending, let the same be decided, provided the petitioner complies with the notice dated 15.03.2017 inasmuch as the petitioner shall submit the entire details of the relevant financial year as mentioned in the notice with the department - petition disposed off - decided in favor of petitioner.
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2017 (4) TMI 649 - CESTAT NEW DELHI
Condonation of delay - there was a delay of 5 days in presenting the appeal and inasmuch as the appeal was not annexed with the proper documents - maintainability of appeal - Held that: - there was utter lapse on the part of the appellant to remove the defects and to file the appeal again, but keeping in view that the appellant is a partnership firm and appreciating their stand that the said fact was not brought to their notice by the advocates and appreciating that the appellant was initially filed with the delay of 5 days only and in the interest of justice, the delay is condoned in filing the appeal - as there has been admitted lapse on the part of the assessee, it is fit to impose a cost of ₹ 5,000/- - COD application allowed.
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2017 (4) TMI 648 - CESTAT NEW DELHI
Works contract - whether the appellant, who were working under works contracts with the Indian Oil Corporation for construction of petrol pump, were required to pay the service tax for the period prior to 1-6-2007? - Held that: - there was a reasonable cause on the part of the assessee to entertain a bona fide belief about non-taxability of service being provided by them - The circumstances of the invocation of Section 80 as also invocation of extended period of limitation relate to mala fide on the part of the assessee, with an intent to evade payment of duty. Once that mala fide has not been found for the purpose of Section 80, the same would not be available to the Revenue for invocation of extended period of limitation - demand for the entire period is barred by limitation - appeal allowed - decided in favor of appellant.
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2017 (4) TMI 647 - CESTAT NEW DELHI
Laying optical fibre cable alongside or under the road - Site Formation and Clearance, Excavation and Earthmoving or not? - taxability - Held that: - The C.B.E. & C. Circular No. 123/05/2010-ST, dated 24-5-2010 has specifically clarified in Sl. No. 2 of the Table under Para 3 that such activity will not be liable to service tax under any of the sub-clause of sub-section (105) of Section 65 of the FA, 1994 - It stands further clarified later that the word “cable” will include all types of cables including electrical cables as well as optical fibre cables - service not taxable - appeal rejected - decided against Revenue.
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2017 (4) TMI 646 - CESTAT NEW DELHI
Refund claim - N/N. 41/2007-S.T., dated 6-10-2007 - refund claim rejected on the grounds that notification requires submission of original invoices, duly certified - Held that: - The intention and idea in getting every invoice certified is to establish that such services were used by the assessee for export purposes and in fact stands paid for by them. Instead of certifying each and every invoice individually and separately, if a consolidated certificate giving details of the invoices, stand given by the assessee, the same would fulfill the notification criteria - the invoice number mentioned in the Chartered Accountant certificate are required to be verified - appeal allowed by way of remand.
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2017 (4) TMI 593 - CALCUTTA HIGH COURT
Validity of subsequent adjudication proceeding - The main ground of challenge to the order passed in the second adjudication proceeding was that the points decided against the appellant were beyond the scope of the SCN - Held that: - considering the fact that substantial part of the demand already stands deposited and that the appellant was enjoying an interim order during pendency of the writ petition out of which the present appeal arises, we stay the operation of the impugned judgment and order until disposal of the appeal - matter stayed until the disposal of appeal.
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2017 (4) TMI 592 - CESTAT CHENNAI
Levy of penalty - Failure to pay tax - financial difficulty - repeated failure - demand of duty, interest and penalty - Held that: - While the appellant is doubtlessly a sick unit, they have also got into the habit of not only making payments belatedly, but also expecting every time, waiver of penalty amounts. In the instant case, they have also not discharged their interest liability - the full waiver of penalty imposed on them would be unjust to Revenue and to the exchequer. However, keeping in mind that financial difficulties of appellant have escalated to a point that they have had applied to BIFR for financial rehabilitation, there is a case for granting partial reduction of the penalty amount. Accordingly, the penalty amount is reduced to ₹ 6,00,000/- - appeal disposed off - decided partly in favor of appellant.
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2017 (4) TMI 591 - CESTAT NEW DELHI
Construction of commercial, industrial and residential complex - Charitable Institutions or not? - Held that: - the Hon’ble Supreme Court in the case of Larson & Toubro Limited [2015 (8) TMI 749 - SUPREME COURT] has clearly laid-down that no service tax is leviable for the period prior to 01.06.2007 in respect of activities which are in the nature of works contract. Works contract as a separate service was included in the statute only from 01.06.2007 - The nature of the activity carried out by the appellant definitely involves service alongwith supply of materials required for construction. Accordingly, the activity would be rightly covered under the category of works contract from 01.06.2007 - The decision of the Apex Court in the case of Larsen & Toubro Limited was not available to the lower authorities at the material time when the impugned order was passed. Consequently, matter on remand the issue to the original adjudicating authority for denovo decision - appeal allowed by way of remand.
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2017 (4) TMI 590 - CESTAT NEW DELHI
Penalty u/s 78 of the FA, 1994 - Upon issuance of SCN, the appellant had paid the service tax attributable to the GTA service along with interest, the prayer of the appellant in this case is that since there is no element of mens rea in defrauding the Government revenue, penalty cannot be imposed - Held that: - Since the appellant is an exporter of manganese ore, on which no duty and tax is payable, there was scope for entertaining the bona fide belief that no service tax is payable on the GTA service as a recipient of such service - present case is not attributable to any fraud, collusion, wilful misstatement, suppression of facts, with intent to evade the tax - benefit of section 80 extended - appeal set aside - appeal allowed - decided in favor of assessee.
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2017 (4) TMI 589 - CESTAT NEW DELHI
Natural justice - Commissioner (Appeals) has failed to examine the certain facts of the case, which the appellant seeks to be reconsidered - Held that: - the Commissioner (Appeals) has failed to examine the fact that the appellant constructed one unit residential housing which are not covered by the definition of ‘residential complex’ - also, the fact that the construction of milk parlour is for State Govt.’s Enterprise-Rajasthan Cooperative Dairy Federation, has not been examined by the impugned order - matter is remanded for decision afresh for examination of full facts afresh - appeal allowed by way of remand.
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2017 (4) TMI 588 - CESTAT MUMBAI
Reversal of CENVAT credit - Rule 6(3)(c) of CCR - As per Rule 6(3)(c) the appellant is entitled to utilize Cenvat credit only to the extent of 20% whereas they have utilized Cenvat credit in excess to 20% , the said excess utilized Cenvat credit was demanded - Held that: - there is no bar in availment of the credit. Even if the appellant utilize excess credit in a particular month/period there will be a short utilization in the subsequent month this will amount to deferment of payment from cash from particular month to the subsequent month, this factual aspect was not looked into by the adjudicating authority - matter remanded to the adjudicating authority for passing a fresh de novo adjudication order - appeal allowed by way of remand.
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2017 (4) TMI 587 - CESTAT CHENNAI
CENVAT credit - denial on account of change of addresses - Held that: - There is no enquiry conducted to find out whether the amounts related to the appellant are not. In absence of any contra finding, there should not be denial of the Cenvat credit just for a technical defect - credit allowed.
Construction of cabin chair, etc., bill for miscellaneous work in MD quarters, bill for miscellaneous work in apartment and use of telephone - Held that: - There is no justification nor any relevancy or integral connection brought out by appellant on the grounds of appeal to establish that those were essential input services for providing output service - credit denied.
Construction of toilet for staff quarter - Held that: - the basic amenities for the employees have been provided like the obligation under Factories Act - credit allowed.
Services of pest control - Held that: - it is essential requirement to carry on business to protect record for verification of the public authorities. Therefore, denial of Cenvat credit to such services shall be contrary to public interest - credit allowed.
Appeal partly allowed - decided partly in favor of appellant.
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2017 (4) TMI 586 - CESTAT BANGALORE
Classification of service - post-sales services such as arrangements for checking the equipments periodically, providing the services of personnel, who are highly skilled and trained’ - classified as ‘consulting engineering service’ or as maintenance service? - Held that: - Deploying highly skilled and trained personnel for taking care of periodical servicing or even putting those people throughout the year on such job in respect of servicing and maintenance of complex hydraulic and mechanical equipments will not make these services ‘Consulting Engineer’s service’, when they are actually in the category of ‘maintenance services’ - appeal rejected - decided against Revenue.
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2017 (4) TMI 585 - CESTAT CHENNAI
Interpretation of statute - condition (c) to first proviso of N/N. 41/2012-S.T., dated 29-6-2012 - Held that: - Notification has to be strictly construed and that the conditions for taking refund under notification also to be strictly interpreted - In the present case, the condition certainly does not state that amount in para 3 will be subtracted from the amount in para 2, or that the resultant amount will be equal to “para 2 minus para 3” or even that amount in para 2 will the minuend and amount in para 3 will be the subtrahend - appeal dismissed - decided against Revenue.
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2017 (4) TMI 584 - SC ORDER
Commercial or industrial construction service - Works Contract - Levy of service tax prior to 1.6.2007 - the decision in the case of Sobha Developers Ltd. Versus Commissioner of Central Excise and Service Tax, Bangalore [2009 (9) TMI 342 - CESTAT, BANGALORE] contested - Held that: - The present appeals, therefore, will be squarely covered by the decision of this Court in Larsen and Toubro Limited [2015 (8) TMI 749 - SUPREME COURT] - appeal dismissed - decided against the revenue.
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2017 (4) TMI 564 - BOMBAY HIGH COURT
Rejection of VCES - Valuation - inclusion of reimbursement of their expenses in the value of taxable services - Since the petitioners throughout held the view that they are not liable to pay service tax but noticing that there was a Voluntary Compliance Encouragement Scheme of 2013 traceable to paragraph 104 to 114 of the Finance Act, 2013 with effect from 10th May, 2013 and the Service Tax Voluntary Compliance Encouragement Rules, 2013 were also introduced, they filed an application in the prescribed form.
Held that:- the payment which has been made and for a past audit objection, for an earlier period cannot be utilized to reject the application as is now made by the present writ petitioner. The application invoking VCES has to be considered and if at all rejected, it must be on the touchstone of the paragraphs of the VCES, 2013 and the wording thereof. The scheme itself cannot be defeated by holding that on the earlier occasion parties like the petitioners have accepted their liability.
The authorities need not be so anxious to protect the government revenue and reject the applications, as are made in the present case by closing the files instantaneously. They have to apply their mind. They must consider the application in accordance with the paragraphs of the scheme. - Matter restored before the authorities.
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