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Service Tax - Case Laws
Showing 141 to 160 of 205 Records
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2017 (4) TMI 563 - ALLAHABAD HIGH COURT
Refund of cenvat credit for the period prior to registration of Assessee - Held that:- We do not find anything in the aforesaid rules which require registration as a condition or eligibility to claim refund. Even Form-A no where suggests that any such condition must be observed.
Moreover, if refund is otherwise admissible to a party by a Tax Department, interpretation to the Statute which justify refund to the party must be given for the reason that State or Tax Department cannot be expected to retain Revenue which legally is refundable to the party. It should not be allowed to be retained when legally Revenue is not entitled to such money.
Moreover, in Formica India Division v. Collector of Central Excise - [1995 (3) TMI 98 - SUPREME COURT OF INDIA] Court has also observed that refund should not be denied on technical grounds. - Decided against the Revenue.
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2017 (4) TMI 562 - CESTAT NEW DELHI
Construction and commissioning of petrol pumps for oil companies - denial of abatement - eligibility for abatement of 67% in the taxable value for services rendered under “commercial or industrial construction service” - Held that:- Admittedly, all the contracts executed by the appellant/assessee are in the nature of indivisible works contract. They were registered with the State VAT Authorities under the said category. The Hon’ble Supreme Court in Larsen & Toubro Ltd. (2015 (8) TMI 749 - SUPREME COURT) held that such works contracts are liable to service tax only w.e.f. 01/06/2007. Accordingly, following the ratio of the Hon’ble Supreme Court in Larsen & Toubro Ltd. (2015 (8) TMI 749 - SUPREME COURT), we find that there is no merit in the appeal filed by the Revenue regarding re-classification of the service or for denial of abatement to the appellant/assessee. - Demand set aside - Decided in favor of assessee.
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2017 (4) TMI 561 - CESTAT ALLAHABAD
Refund - deposit of service tax with interest on the instruction of revenue - Subsequently, CBEC clarified vide Board Circular No. 111/05/2009 ST dated 24/02/2009, wherein inter-alia clarified that service as provided by the appellant, was covered under Export of Service Rules, 2005 and the same was not a taxable service.
Held that:- the amount paid towards tax no longer remained tax in view of the CBEC Board Circular No. 111/05/2009 ST dated 24/02/2009 - the amount of interest as initially paid, also partook the nature of Revenue deposit, upon clarification of the law - Adjudicating Authority directed to grant refund of the said amount of ₹ 10,24,535/- with interest from 3 months ended from the date of refund application dated 30/07/2009. - Decided in favor of assessee.
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2017 (4) TMI 560 - CESTAT NEW DELHI
Levy of penalty u/s 76 - The sole grievance of the Department is that, the adjudicating authority has dropped the penalty under Section 76 of the Finance Act, 1994. - Commercial or Industrial Construction Service - Held that:- It is not fair on the part of the Department to file the Appeal for the reason that the penalty under Section 76 was not levied, especially when the penalties under Section 77 and 78 of the Finance Act, 1994 were also levied. Further, it may be mentioned that as far as the imposition of penalty under Section 76 and 78 of the Finance Act, 1994 is concerned, the provisions are mutually exclusive. Where conditions warranting imposition of penalties under Section 78 exist, penalty under Section 76 cannot be levied.
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2017 (4) TMI 559 - CESTAT NEW DELHI
Extended period of limitation - Business Auxiliary Service - It is the case of the appellant that the present show cause notice invoking demand for extended period cannot be legally sustained as repeat notice cannot be issued invoking extended period. - Held that:- There were two earlier proceedings against the appellant regarding the tax liability as “Commission Agent” under “BAS”. It is now a well settled legal position that repeat show cause notices for subsequent periods cannot be, generally, issued invoking again longer period on the ground of suppression, mis-statement, etc. In the present case, we do not find tenable justification to allege suppression on the part of the appellant. The appellants have been put to adjudication twice for their activities under the very same tax entry “BAS” and both the cases were dropped either originally or on remand proceedings.
No justification for the subsequent demand by invoking suppression of facts. - Demand set aside - Decided in favor of assessee.
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2017 (4) TMI 558 - CESTAT NEW DELHI
Valuation - Clearing & Forwarding Agency Services - inclusion of re-imbursement of the actual expenditure - Extended period of limitation - Held that:- The agreement did not specifically list all such expenditures and in the absence of such categorical stipulation, a general observation regarding mandatory ceiling of re-imbursement by itself cannot be taken as a support for excluding a portion of the value on the ground that these are re-imbursable expenditure - decided against the assessee.
Extended period of limitation - Held that:- there has been a large number of litigation and clarification, with reference to valuation of C & F Agency Service. - it is not tenable to hold that this is a fit case for invoking extended period alleging fraud, collusion, willful mis-statement or suppression of facts. As such, we hold that the service tax liability, as confirmed by the impugned order, shall be restricted to normal period. The penalties imposed on the appellants are also set aside.
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2017 (4) TMI 557 - CESTAT MUMBAI
Classification of service - Transportation activity or Site formation and clearance, excavation and earthmoving and demolition - Appellant submits that show cause notice is vague and based on assumptions and presumptions without looking into the actual facts - work order of loading, unloading and transportation of coal at Open Cast mines - Held that:- We find that whatever may be the activity of the work contractor M/s. NEPL, it is the nature of services of the Appellant which has to be looked into for imposition of service tax. On overall perusal of the SCN and the impugned order, we find that nowhere the activity of the Appellant and its agreement with M/s. NEPL was considered.
Since in this case the Appellant has undertaken only the transportation activity and the services were rendered to M/s. NEPL which is a private Ltd. concern, we hold that the services are of transportation on which the Appellant is not liable to service tax being taxable under reverse charge mechanism. Thus, the Appellant is not liable to any service tax under the category of “Site formation and clearance, excavation and earthmoving and demolition” services. - Decided in favor of assessee.
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2017 (4) TMI 556 - CESTAT BANGALORE
Classification of service - CHA services or C&F services - Demand of tax under reverse charge mechanism - CHA invoice shows the nomenclature “Clearing and Forwarding Division” below its name - Held that:- the services rendered by M/s. United Liner Agencies of India Pvt. Ltd. is a CHA service and not a Clearing and Forwarding Agency Service. Although the nomenclature used by the service provider is Clearing and Forwarding Agent but the services rendered by the said agent is in the nature of services rendered by CHA and he has registered with the Customs Department as CHA. In view of these facts, we hold that the appellants are not liable to pay the service tax as they have already paid the same to the CHA who in turn has paid to the Government and the appellants are not liable to pay the service tax on reverse charge mechanism. - Demand set aside - Decided in favor of assessee.
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2017 (4) TMI 510 - SC ORDER
Franchisee service - Invocation of extended period of limitation - whether the appellant gave to the distributors representational right to sell its products i.e. products identified with it - Supreme Court dismissed the appeal against the decision of tribunal [2015 (5) TMI 705 - CESTAT NEW DELHI]
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2017 (4) TMI 509 - SC ORDER
Demand of service tax - Transportation of goods by air - whether the service tax payable on excess baggage charges paid by the passengers at the time of boarding the aircraft - Extended period of limitation - Supreme Court dismissed the revenue appeal against the decision of tribunal [2015 (11) TMI 54 - CESTAT MUMBAI (LB)]
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2017 (4) TMI 508 - SC ORDER
Condonation of delay - Whether there was sufficient cause for condonation of delay in filing the appeal - Demand of Service tax alongwith interest and penalty - Supreme Court dismissed the appeal against the decision of High Court [2016 (5) TMI 567 - PUNJAB AND HARYANA HIGH COURT]
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2017 (4) TMI 505 - BOMBAY HIGH COURT
Constitutional validity of circular No.180/06/2014-ST dated 14.10.2014 - authorized money changers and money transfer agents - The essential argument is that the services rendered by the petitioners associate through its members do not attract the service tax. - Held that:- assessing officer should not be influenced by any directions and contents of the office memorandum. He should not go by the subsequent circular dated 14th October, 2014 which supersedes the earlier circular of 10th July, 2012. He must allow the assessee to raise all contentions and consider them in accordance with law. Presently, we do not see any reason to clarify other issues because that would be purely academic.
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2017 (4) TMI 504 - CALCUTTA HIGH COURT
Dispute between the contracting parties related to Service tax - invocation of unconditional bank guarantee - The petitioner contends in view of the nature of the dispute and clear assertion of the petitioner that service tax is not payable and the opinion of the Government on the basis of which the respondent invoked the bank guarantee is untenable in law.
Held that:- The parties have agreed to the appointment of an Arbitrator by this Court. Accordingly, Mr. J.P. Khaitan, Senior Advocate is appointed as Arbitrator to adjudicate the dispute between the parties within four months from the date of entering reference.- There shall be an unconditional order of injunction restraining the respondent to realise the amount from IDBI Limited for a period of seven days from date.
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2017 (4) TMI 503 - BOMBAY HIGH COURT
Levy of penalty - assessee had discharged the entire liability of payment of service tax and interest thereon before the issuance of show cause notice - Held that:- when an assessee had paid the service tax in full together with interest, the proceedings against the assessee would be concluded including the proceedings under Section 73(3) of the Finance Act, 1994. - Decided in favor of assessee.
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2017 (4) TMI 502 - KERALA HIGH COURT
Pre-deposit u/s 35F - Having regard to the fact that the petitioner had offered to remit 7.5% of the amount as stated above, it would only be appropriate to give one more opportunity to the petitioner to remit the said amount. - On receipt of the said amount, the appellate authority shall restore the appeal on file and hear and dispose of the matter in accordance with law, as expeditiously as possible.
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2017 (4) TMI 501 - CESTAT AHMEDABAD
Business Auxiliary Service - procurement of goods - appellants are purchasing the spares from the various sources. The appellants are also clearing the said spares to their clients on payment of VAT of the entire value of the goods - Scope of Notification No. 12/2003-ST - Held that:- The said notification provides that if during the provision of the services any goods are sold the value of such sales is excluded from the value of the services.
Ld. Counsel has argued that in the instant case, the value on which service tax has been demanded is the same value at which the goods have been sold. Therefore, the entire value is exempt in terms of Notification No. 12/2003-S.T.
In respect of transactions where contracts create an obligation on the appellants to provide spares, we set-aside the impugned order and remand the case to Commissioner (Appeals) to answer the question regarding availability of Notification No. 12/2003-ST or otherwise. In respect of transactions where there is no such obligation in the contract, the demand is set-aside. - Matter remanded back.
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2017 (4) TMI 500 - CESTAT NEW DELHI
Denial of Cenvat credit of service tax - Non submission of the supporting documents - Held that: - The only dispute in the present appeal relates to non-availability of invoices, which according to the appellant stand destroyed in a fire, which broke out in the premises on 7-8-2009. The fact of fire stands established by the fire report produced by the appellant as also by the FIR.
The appellate authority in his order has clearly observed that he has scrutinised the invoices, etc. This fact along with the fact that the details of the credit taken were reflected in ST3 returns filed for the period in question read with undisputed fact of fire, which led to destruction of invoices, according to me should not be adopted as a reason for denial of refund as a reason - Appeal allowed.
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2017 (4) TMI 499 - CESTAT NEW DELHI
Cenvat credit - Inputs, capital goods and input services in terms of CCR, 2004 - classification of the service should be under “supply of tangible goods” - Held that: - We find the present plea taken by the Revenue is entirely on different ground not agitated before the lower authority. Further, it is well settled position of law that the credit availed by an assessee cannot be denied or varied on the ground that the classification of service should have been made in a different category by the provider of service. Variation in the classification or consequent rate of payment of Service Tax is not possible at the end of the recipient of service. There is nothing on record to state that the category of service or payment of Service Tax has been varied during the material time by the provider of service - Appeal dismissed - Decided against the Revenue.
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2017 (4) TMI 440 - CESTAT CHANDIGARH
Refund claim - N/N. 41/2007-ST dated 06.10.2007 - Terminal Handling Charges, other Port Services, Fumigation Expenses - denial on the ground that the services are not port services - Held that: - The said issue came up before this Tribunal in the case of M/s SRF [2015 (9) TMI 1281 - CESTAT NEW DELHI], where it was held that exporter should not be unduly burdened with a condition to establish that the service provider was registered under port services - Terminal Handling Charges, Other Port Services and Fumigation Services are covered under port services, therefore the appellant is entitled for refund claim.
Refund claim - Testing, Inspection and analysis services - denial on the ground that the appellant has not produced the agreement for those services - Held that: - the agreement is not requirement and the same is only procedural requirement for the same and in the case where there is no agreement, the appellant cannot be asked to produce the agreement - the appellant is entitled for refund claim on Testing, inspection and analysis services.
Refund claim - Courier charges - denial on the ground that IEC code number of the appellant is not mentioned on the invoices issued by the service provider - reliance was placed in the case of Amar International [2015 (7) TMI 100 - CESTAT MUMBAI], where it was held that There is no dispute that the details of the appellant/exporter as also description of goods are mentioned in these invoices under the circumstances the objection can at the most be called procedural infirmity - the appellant is entitled for refund claim on the courier services.
Refund claim - GTA service - denial on the ground that the appellant has not produced the relevant documents for entertaining to their refund claim - Held that: - as the appellant is preferred to produce the relevant documents in support of the services received by the appellant, the matter needs examination at the end of the adjudicating authority - matter on remand.
Appeal allowed - part matter on remand and rest appeal allowed in favor of appellant.
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2017 (4) TMI 439 - CESTAT NEW DELHI
Whether, the appellant in the capacity of recipient of service can pay service tax from its cenvat account?
Held that: - the issue involved in this case is no more res-integra in view of the judgment of Hon’ble Gujarat High Court in the case of Commissioner of Central Excise and Customs Vs. Panchmahal Steel Ltd., [2014 (12) TMI 876 - GUJARAT HIGH COURT] where it was held that though the assessee was liable to pay service tax on GTA Service, it could have utilized Cenvat credit for the purpose of paying such duty - appeal allowed - decided in favor of appellant.
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