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Service Tax - Case Laws
Showing 161 to 180 of 205 Records
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2017 (4) TMI 438 - CESTAT MUMBAI
Business auxiliary service - incentives received - commission on cargo booked by IATA agents - short paid tax - The impugned order appears to hold that the unclaimed amount is commission received as General Sales Agent and liable to tax - Held that: - expression ‘gross amount charged’ in Section 67 of Finance Act, 1994 is limited to the consideration taxed in the impugned order because the expression ‘gross amount charged, is not an isolated phrase but to be read in conjunction with the expression ‘for such service provided’. Consequently there is no scope for taxing the amounts transferred to IATA agents as consideration for service rendered by assessee.
Cum-tax valuation - target incentive - Held that: - As the amount is not evidenced as receipts for services but is merely deemed to be so, it is plain that tax has not been collected on this amount. Moreover the amount paid by the airline is a consequence of contractual terms which does not admit to additional payment of tax on the contracted amount. In accordance with principles of equity, the amount on which tax has been collected should be considered as including the tax component.
Likewise, the commission received as General Sales Agent on cargo bookings effected by IATA agents is covered by contractual agreement which, too, does not provide for tax liability on the amount paid by the airlines. Consequently, we find that they are entitled to ‘cum-tax’ valuation of services on which tax has been computed. This would reduce the tax liability, interest liability and penalties arising therefrom.
Penalty - Held that: - considering the promptitude with which payments were made along with interest, penalty u/s 76 of Finance Act, 1994 imposed in connection with the first notice is not warranted and is aside.
Appeal disposed off - decided against Revenue.
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2017 (4) TMI 437 - CESTAT NEW DELHI
Refund - N No. 41/2007-S.T., dated 6-10-2007 - Held that: - a part of the period in some of the cases and whole of the period in one of the cases is subsequent to the introduction of the said Notification, Revenue’s objection of denial of refund claims is unsustainable. Accordingly, we remand the matters to the original adjudicating authority for examining the period in question and to decide the same according to law - Appeal allowed by way of remand.
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2017 (4) TMI 436 - CESTAT CHANDIGARH
Condonation of delay - Period of limitation - Held that: - As the reason stated by ld. Counsel for the appellant that the accountant left the job and demand being on lower side and the status of the appellant can be understood that appellant is poor person. In that circumstances, it would be in the interest of justice to grant an opportunity to the appellant of being heard on merits - Appeal allowed by of remand.
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2017 (4) TMI 435 - CESTAT CHANDIGARH
Imposition of penalty u/s 78 of FA, 1994 - power of revisional authority - appellant case is that initially in the SCN, there was no proposal to impose penalty u/s 78 of the FA, 1994, thus, the revisionary authority has no power to impose penalty u/s 78 of the FA, 1994 - Held that: - The said SCN was never reviewed, therefore, no authority can go beyond the SCN dated 21-2-2007. Admittedly, the Revisionary Authority has gone beyond the allegation of the SCN dated 21-2-2007 - the order of Revisionary Authority to impose penalty on the appellant u/s 78 of the FA, 1994 is illegal - appeal allowed - decided in favor of appellant.
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2017 (4) TMI 389 - CESTAT NEW DELHI
Non-payment/short payment of service tax - reimbursable expenses on actual basis relating to travel and accommodation of some of their employees - Held that: - similar set of facts were subject matter of decision in the case of Engineers India Ltd. – 2016 (12) TMI 1530 – CESTAT, New Delhi, where it was held that the provisions of Section 5 (1) as ultra virus and accordingly, held that reimbursable expenditure cannot form part of taxable value in terms of Section 67 - demand set aside.
Utilisation of CENVAT credit to pay service tax liability - Held that: - when the appellant have discharged service tax on eligible input service, they are entitled for credit and for further utilization for discharging duty liability on taxable output services. This can be verified by the jurisdictional authorities, based on the documents produced before him - appeal allowed by way of remand.
Appeal allowed - decided in favor of assessee.
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2017 (4) TMI 388 - CESTAT CHANDIGARH
Utilisation of CENVAT credit account - Goods Transport Agency service - reverse charge mechanism - the case of Revenue is that as credit on account on GTA Service was not in their cenvat credit account, therefore, cenvat credit cannot be utilised for payment on GTA Service in terms of N/N. 10/2008-CE (NT) dated 01.03.2008 - whether in terms of N/N. 10/2008 dated 01.03.2008, the appellant can utilise cenvat credit account for payment on GTA Service for procurement of inputs or not? - Held that: - The said issue came up before this Tribunal in the case of UNI Deritend Ltd. [2011 (10) TMI 347 - CESTAT, MUMBAI] wherein it was held that In view of Shri Tubes & Steels [2010 (9) TMI 815 - CESTAT, BANGALORE] the appellants are entitled to pay service tax through Cenvat Credit account for the period prior to 19.4.2006 - the appellant cannot utilise cenvat credit account for payment on GTA Service for procurement of inputs - demand upheld.
Imposition of penalty u/s 76 of FA, 1994 - Held that: - the N/N. 10/08 dated 01.03.2008 came into effect from 01.04.2008, in that circumstances, benefit of Section 80 of the FA, 1994 is available to the appellant as whatever the service tax has been paid, therefore, the appellant is entitled for cenvat credit - penalty u/s 76 of the FA, 1994 is not imposable on the appellant.
Appeal disposed off - decided partly in favor of appellants.
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2017 (4) TMI 387 - BOMBAY HIGH COURT
Maintainability of appeal - time limitation - condonation of appeal - issuance of Corrigendum - Held that: - the order-in-original was passed on 31-10-2012 and the appeal was filed on 27-2-2013. It would be seen that after the order was passed on 31-10-2012, there was some mistake in the order was noticed. Corrigendum was issued on 31-12-2012 for correcting the amount of penalty. Naturally the appeal period will have to be computed from the corrected date of the order as that is the order that would be executable - if the Corrigendum is considered, then naturally the appeal would be within limitation - appeal maintainable and is to be considered on merits.
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2017 (4) TMI 386 - CESTAT NEW DELHI
Adjustment of excess amount of Service Tax paid in earlier months in the succeeding months - whether the adjustment made by the appellant on the excess payments made by them under the provisions of Rule 6 of the Service Tax Rules for payments of service tax, a liability that arose subsequently? - Held that: - the adjustment of the excess credit paid during the previous period is allowed as was also allowed in the appellant's own case during the previous period - appeal rejected - decided against Revenue.
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2017 (4) TMI 385 - CESTAT NEW DELHI
Refund claim - N/N. 41/2007-S.T., dated 6-10-2007 - rejection for the reason that the claim was time-barred - Revenue took the view that the claim filed on 27-10-2008 has been filed after the time limit of 60 days - Held that: - the clarification with N/N. 17/2009-S.T. issued by the Board is in the nature of a benefit extended to the assessees. It is to be viewed as relaxation of the conditions prescribed under N/N. 17/2009-S.T., even though a one time measure - the exports have taken place prior to the issue of the N/N. 17/2009. It is also seen that the refund claim was filed citing the earlier N/N. 41/2007-S.T. Given the benefit of relaxation in the Board Circular, it emerges that refund claim filed within a period of one year from the date of export should be allowed the benefit of refund of service tax paid in export.
Since the refund has been claimed for the exports done between October, 2007 and June, 2008, and the refund has been claimed on 27-10-2008, time-bar will arise for exports which have taken place during the period 1-10-2007 to 26-10-2007. This aspect will need to be re-considered by the original authority - appeal allowed by way of refund.
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2017 (4) TMI 338 - CESTAT NEW DELHI
Levy of tax - bus service for transporting staff - Revenue entertained a view that such activity of transporting persons by providing bus will be covered under the taxable activity of “tour operator service” liable to service tax in terms of the provisions of FA, 1994 - Held that: - the case of Capricorn Transways Pvt. Ltd. vs. CCE, Raigad [2014 (11) TMI 165 - CESTAT MUMBAI] held when the vehicle, in question, are not tourist vehicle and are only contract carriage buses not holding tourist permit, no liability to service tax will arise - the assessee is providing buses at fixed charges and the schedule of operation is as per the instruction of the client company. There is no scope to tax such activity under a tour operator service. Reliance was placed on the Circular dated 17/09/2004 issued by the Board - The respondent herein was not engaged in planning, scheduling, organizing or arranging tours. They only provided buses on fixed charges for transportation of staff as per the schedule and timing decided by the client company. In such situation, there can be no liability of service tax under the category of tour operator service on the respondent - appeal dismissed - decided against Revenue.
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2017 (4) TMI 337 - CESTAT MUMBAI
Taxability - amount received and/or retained by assessee towards expenditure as consideration for rendering of 'club or association service' - It is the case of the tax authorities that the amount retained on account of amounts expended is a consideration received by it for rendering 'club or association service' and is, therefore, liable to tax and FA, 1994 - Held that: - this appellant is an association of persons. Doubtlessly, the members have paid a certain amount for the privilege of membership. They have likewise participated in contributing to the common expenses of the association - That members may come together for a common purpose which may involve membership fee and participation in common expenditure is an accepted reality of the existence of social man. To take it beyond that perspective to the hard reality of subjection to tax, the object of the tax law must also be fulfilled which, in relation to FA, 1994 is the rendering of a service. The impugned order has failed to convince that a service is rendered by the appellant to its members and the contributions are the quid pro quo for that service.
There can be no doubt that 'copyright societies' are established under law and hence not liable to be taxed on any receipts from its members.
Demand set aside - appeal dismissed - decided against Revenue.
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2017 (4) TMI 336 - CESTAT MUMBAI
Classification of service - legal consultancy service or not - demand under the category of support services’ of business or commerce - Held that: - it cannot be in doubt that respondent appears before tax authorities in statutory proceedings. Such appearance also involves preparation and certifying of documents that are required to be filed in accordance with compliance necessities - Submission of returns or appearance for resolution of disputes are not activities that are directly concerned with furtherance of business activities of an organization. On the contrary, these are activities that are thrust upon an organization for its very survival in the realities of the legal environment in which the organization functions. These are unavoidable and are not easily performed by the human resources available within the organization. Professional outside assistance has, necessarily, to be solicited and, considering the inevitability of such soliciting, loses the character of having to be outsourced for economic viability. Unless an activity is optional for the continued existence of the organization and permits the flexibility of self-performance vis-a-vis outsourcing, it does not appear to invite coverage as 'support service of business or commerce' and the appeal of Revenue has not ventured to do so - appeal rejected - decided against Revenue.
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2017 (4) TMI 335 - CESTAT ALLAHABAD
Validity of SCN - extended period of limitation - N/N. 24/2004 dated 10/09/2004 - exemption to computer training institutes - Held that: - the computer training institutes, no longer enjoy exemption with effect from 01/07/2004 or 10/09/2004 when exemption was specifically continued only for recreational training and vocational training Institute - no case of suppression of facts with intent to evade duty or tax is made out, nor any case of contumacious conduct is made out on the part of the appellant - the extended period of limitation is not attracted - appeal allowed - decided in favor of appellant.
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2017 (4) TMI 284 - CESTAT CHANDIGARH
Penalty u/s 76 and 78 of FA, 1994 - on merits the demand is not sustainable, in that circumstances, the penalty can be imposed on the appellant or not? - Held that: - Admittedly, on merits, the demand against the appellant cannot be confirmed in the light of the decision of this Tribunal Seva Automotive Pvt. Ltd. [2013 (7) TMI 265 - CESTAT MUMBAI] wherein this Tribunal held that For authorized service stations, the cost of the spare parts and cost of handling of spare parts are not to be included in the value of the services rendered, thus they will not form part of the services rendered - as demand not confirmed, penalty also set aside - appeal allowed - decided in favor of appellant.
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2017 (4) TMI 283 - CESTAT CHANDIGARH
Liability of service tax - transport of goods by road services - Revenue's case is that the sugar cane has been transported by Truck Operator Union from the collection center up to their factory and they have received transportation charges from the respondent therefore, in terms of Rule 2 (1) (d) (v) of the STR, 1994, the respondent is liable to pay service tax - Held that: - the transportation of sugar cane to the factory of the appellant is the duty of the farmers who supplied the sugar cane at the collection center set up by the respondent. From the collection center, the sugar cane was supplied by Truck Operator Union. The Truck Operator Union is not a commercial concern therefore, the same is not covered under Goods Transport Agency, therefore, the provisions of Section 65(105)(zzp) are not applicable to the facts of the this case - appeal dismissed - decided against Revenue.
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2017 (4) TMI 282 - CESTAT MUMBAI
Deduction - Services provided to SEZ - Other income like dividends, interest etc. - Service Tax on job-work done - Purchase of stationery, etc. - whether the cum-tax benefits allowed in respect of above services justified or not? - Held that: - it is settled law that no service tax liability arises in respect of services provided to SEZ units or SEZ unit developers, hence there is no merits in the revenue's appeal on this point. We also note that the reimbursable amount sought to be taxed by revenue are in fact actual cost of stationery etc., hence adjudicating authority was correct in dropping demands on this count. As regards service tax liability on job-work involved, it is the claim of the learned counsel for the respondent that they have already discharged service tax liability. This particular point needs further clarification - the adjudicating authority needs to reconsider the issue in respect of the cum-tax benefit claimed, as also the job-work issue - appeal allowed by way of remand.
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2017 (4) TMI 281 - CESTAT HYDERABAD
CENVAT credit - input services - setting up of Research Laboratory premises - That department is of the view that since the services relate to immovable property, the credit cannot be allowed - Held that: - the disputed services have been received by the appellant and credit taken prior to 01.04.2011 - the Board vide circular No: 943/04/2011-CX, dated 29.04.2011 has clarified that the credit is eligible if the services have been availed before 01.04.2011. Needless to say that prior to 01.04.2011, the definition of input services included the services relating to setting up of factory/premises of output service provider. The credit is sought to be denied stating that it relates to immovable property - reliance placed in the case of Maharashtra Cricket Association Versus Commissioner of Central Excise, Pune-III [2015 (11) TMI 910 - CESTAT MUMBAI], where it was held that It is very pertinent that legislators knowing fully that there is no tax or excise duty on the constructing premises of the output service provider, included services used for setting up of the premises of provider of output services, for the simple reason that if the premises are used for providing the output service, the credit of input services used for setting up the premises of service provider must be allowed.
The credit has been wrongly disallowed - appeal allowed - decided in favor of appellant.
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2017 (4) TMI 280 - CESTAT HYDERABAD
Refund claim - Chit Fund Business - During the relevant period there was confusion whether Chit Fund activities are taxable services or not. Therefore, the appellants applied for registration and also paid service tax, and thereafter refund claim was filed - Held that: - The appellant has paid the tax on the belief that Chit Fund business-activities is a taxable service. They have obtained registration for all taxable services other than in the negative list, because the appellants were not sure under which category the said services would fall - it would be proper to have verification whether the appellant was engaged in any activities other than Chit Fund business during the relevant period which would fall under taxable services. The matter is therefore remanded - appeal allowed by way of remand.
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2017 (4) TMI 230 - BOMBAY HIGH COURT
Challenge to the show cause notice - Cash discount - quantity discount - whether would come within ambit of service - Held that: - the SCN, though referring to the earlier adjudication, its acceptance, has further alleged that after the law was amended, it was necessary to probe and investigate the matter. The investigation and the statements, which were recorded during the course thereof, revealed, as provided in para 7 of the SCN and in great details (question answer-wise), that the various incentives were received on account of satisfactory services in various fields, namely, puchase/delivery of goods, namely, vehicles/spare parts, sale of the goods, the servicing of the vehicle parts and customer satisfaction etc. - this matter does not come within the exceptions carved out and noticed above. The show cause notice will have to be adjudicated independent of the version the Revenue projects and places before this court. There is a distinct obligation in the adjudication officer. In these circumstances, by clarifying that the adjudication shall proceed without in any manner being influenced by the stand of the Revenue reflected in the affidavit in reply so also on its own merits and in accordance with law, that all contentions, including those in this writ petition can be raised, we dispose of the writ petition - petition disposed off.
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2017 (4) TMI 229 - CESTAT HYDERABAD
Refund claim - recovery - Held that: - appellants have been granted letter of approval for setting up a SEZ unit. It is also not disputed that the services were received for the purpose of SEZ unit. In the judgments of COMMISSIONER OF SERVICE TAX Versus ZYDUS TECHNOLOGIES LTD. [2014 (5) TMI 100 - GUJARAT HIGH COURT], the issue whether the assessee is eligible for refund of service tax on services used prior to commencement of commercial production has been analyzed and held in favor of assessee - the assessee is eligible for refund. The impugned order upholding the demand and interest is set aside - appeal dismissed - decided against Revenue.
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