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Service Tax - Case Laws
Showing 41 to 60 of 205 Records
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2017 (4) TMI 1132
Refund claims - unutilized CENVAT credit - Online Information and Database access/retrieval service - Renting of Immovable Property services - Held that: - services have been availed after the amendment to rule 2(l) of CCR, 2004 w.e.f. 1.4.2011. In respect of availment of input service credit towards internet devices for directors, insurance, club membership and meal pass there is no evidence put forth by appellants, either in the adjudication order or before the lower appellate authority that they are not for the personal use or consumption of any employee - denial of cenvat credit in respect of these inputs / input services upheld.
CENVAT credit - housekeeping services - Held that: - housekeeping services is very much required for the proper upkeeping of the appellant's premises and in any case the same is not barred from the exclusion clauses of Rule 2(l) of CCR 2004 - credit allowed.
In the case of export of services as provided by Rule 5 of the CCR itself, inward remittances/FIRCs/payments received either directly or through legal and accepted channels of remittances including by NEFT, received during a particular quarter even though related to invoices issued or export services provided for the period prior to that quarter, will definitely required to be included in the export turnover of services for that quarter.
Matter is remanded back to the original authority for the limited purpose of re-quantification of the export turnover and resultant revision in quantum of refund of cenvat credit under Rule 5 ibid - appeal allowed in part and part matter on remand.
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2017 (4) TMI 1131
CENVAT credit - providing passive infrastructure - Entitlement of Cenvat credit of service tax and duty of excise - duty paid on input materials and also on Service Tax paid on charges for clearing the said materials from Customs - Renting of Immovable Property service - Held that: - the issue is no more res integra in view of the decision of larger Bench of the Tribunal in Tower Vision India Pvt.Ltd. [2016 (3) TMI 165 - CESTAT NEW DELHI (LB)], where it was held that appellants are paying service tax under the category of Business Auxiliary Services , or Business Support Services for providing passive infrastructure, the appellants are not entitled to take Cenvat credit on towers, pre-fabricated shelters parts thereof etc, it was also held that the appellant is not entitled to take Cenvat credit to the tune of ₹ 2,59,95,327/- on shelters/parts as capital goods wherein the supplier has paid Excise duty on these items by classifying under Chapter 85 of the CETA, 1985 - appeal dismissed - decided against appellant.
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2017 (4) TMI 1130
Refund claim - Service Tax paid under works contract service for the various works executed by them for the Govt. of West Bengal and its various agencies for laying of pipelines for water supply, sewerage lines etc It is the case of the appellant that they are not liable to pay Service Tax - unjust enrichment - time bar - Held that: - on the issue of time limitation, in the case of Jubilant Enterprises Pvt.Ltd. v. Commissioner of C.Ex., Mumbai-I [2014 (6) TMI 425 - CESTAT MUMBAI] the Tribunal allowed the appeal on the identical situation and held that As the payment made by the appellant is not of service tax, therefore, as held by this Tribunal in the case of Shankar Ramchandra Auctioneers (2010 (4) TMI 391 - CESTAT, MUMBAI) the provisions of section 11B of the Central Excise Act are not applicable.
Regarding unjust enrichment, the assessee sold the goods on a composite price inclusive of all duties, there is no question of unjust enrichment as has been held by the Tribunal in the case of Himatsingka Seide Ltd. v. Commissioner of Customs, Bangalore [2005 (3) TMI 333 - CESTAT, BANGALORE] - The Tribunal in the case of Amadalavalasa Cooperative Sugars Ltd. v. CCE, Visakhapatnam [2007 (1) TMI 432 - CESTAT, BANGALORE] held that unjust enrichment is not applicable as the contract price is inclusive of duty and duty payable reduced or becomes zero is immaterial.
The refund should not be denied on the ground of time barred and unjust enrichment - appeal allowed - decided in favor of appellant.
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2017 (4) TMI 1129
Consulting engineering service - appellants entered into agreements with various foreign entities for obtaining license to use technical knowhow and technical information and also various engineering services, in connection with setting up of their manufacturing plant - Revenue entertained a view that the appellants received taxable service under the category of consulting engineering service - Held that: - The very fact that all these agreements talk about the foreign companies as “licensor” itself is revealing. In a typical agreement for consultancy service, there will be no licensor or licensee with transfer of licensed process technology or proprietary technical information. The essence of the agreement as could be seen from the narration above is for transfer of technology process. The Tribunal had occasioned to examine similar issues involving technical collaboration and transfer of intellectual property right from foreign companies to Indian recipient. It was held that when the agreement is for transfer of exclusive/non-exclusive technical know-how the consideration received cannot be taxed under consultancy service.
Appeal allowed - decided in favor of appellant.
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2017 (4) TMI 1117
100% EOU - input service credit - various input services - denial mainly on account of nexus - denial also on the ground that the services were not used in or in relation to manufacture and clearances up to the place of removal - Held that: - the position of law is fairly settled in respect of input service and the appellant is fairly succeeded to establish that they are used for manufacture and clearance of their final products - CBEC, vide its Circular No. 999/6/2015-CX dated 28.02.2015 itself has clarified that the place of removal in such cases would be Port/ICD/CFS.
As for the service of Palletisation, the show cause notice does not elaborate anything about palletisation - Considering that this service is related to clearances of the goods meant for export, the benefit of credit on the same is available to the appellant.
Appeal allowed - decided in favor of appellant.
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2017 (4) TMI 1089
Condonation of delay - delay not explained properly - Held that: - the reasons furnished do not supply sufficient cause for condonation of delay - application for COD dismissed.
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2017 (4) TMI 1088
Rent-a-cab operator service - principles of natural justice - case of Revenue is that adjudicating authority has not properly appreciated the facts in dropping the demand - Held that: - unsupported factual assertions have been made by the Commissioner (Appeals) like placing the cabs at the disposal of the clients and passing the effective control to the clients. There is no basis for such assertion - the decision of the Tribunal in R.S. Travels [2008 (7) TMI 27 - CESTAT NEW DELHI] is squarely applicable to the present case, where it was held that point has to be decided by the lower authority after ascertaining the facts, for which, this matter has to be remanded to Commissioner for de novo adjudication - appeal allowed - decided in favor of appellant.
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2017 (4) TMI 1087
Renting of immovable property service - lump-sum lease premium or periodical rent - The main objects of appellant are to promote and secure the development of Delhi according to plan and for that purpose, the appellant shall have the power to acquire, hold, manage and dispose of land and other property, to carry out building, engineering, mining and other operations, to execute works in connection with supply of water and electricity, disposal of sewage and other services and amenities and generally to do anything necessary or expedient for purposes of such development and for purposes incidental thereto
Held that: - considering the huge quantum of service tax demand of ₹ 950 crores confirmed against the appellant, we would expect a detailed analysis of factual as well as legal position, before the conclusion was drawn by the Original Authority. The analysis and discussion recorded in the impugned order is rather brief. After reproducing the statutory definitions, the Original Authority has concluded that the appellant is liable to service tax. No analysis was made with break-up figures with reference to commercial or non-commercial property, valuation of taxable service, abatement or exemptions, if any, applicable to the appellant etc.
The tax liability has been confirmed against the appellant for receipts w.e.f. 01/06/2007 considering all such receipts under the category “land premia”. As already noted, we are of the view that the impugned order suffers from serious legal and factual infirmities due to non-examination of various relevant facts and also non-consideration of various legal issues before arriving at the tax liability of the appellant.
The impugned order as its stand cannot be legally upheld. As already noted, it suffers from serious factual and legal infirmities and non-application of mind, both on the question of determination of tax liability as well as on quantification of such tax liability. Accordingly, we are of the considered opinion that the impugned order has to be set aside and the matter has to go back to the Original Authority for a fresh decision - appeal allowed by way of remand.
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2017 (4) TMI 1086
Composite works contract - The Commissioner held that the appellants rendered taxable service under the category of erection, commissioning and installation service chargeable to service tax w.e.f. 01/07/2003 - case of Revenue is that contracts executed by the appellants are to be classified as works contract and the works contract in respect of railways is excluded from tax liability as per the statutory definition itself. It is well settled legal position that metro work is nothing but railway work - Held that: - a contract wherein transfer of property in goods involved in the execution of such contract is leviable to tax as sale of goods is covered under works contract service. Admittedly, in the contracts now under consideration there were transfer of property in goods which are directly involved in the exclusion of work by the appellant. As such, we find that the findings of the Original Authority is without any basis and cannot be legally sustained - appeal allowed - decided in favor of appellant.
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2017 (4) TMI 1085
Liability of service tax - fee collected for testing and certifying seeds at the request of the persons in terms of Section 9 of the said Act - Revenue held a view that the appellants are liable to service tax in terms of Section 65 (108) of the FA, 1994 under the category of Technical Inspection and Certifying Agency Service - appellants contended that they are a statutory authority, performing a statutory function and there is no service element to be taxed under the category of technical inspection and certification - Held that: - the appellants have taken the inspection or examination of seeds in various stages starting from cultivation, harvesting, grading and quality checking in order to arrive at the decision whether the seeds meet the pre-set standards. Thereafter, due certification is given. We find that the activities of the appellant are covered by technical inspection and certification service.
The appellant’s liability to service tax is to be upheld - demand confirmed pursuant to SCN dated 22/10/2010 shall be restricted to the normal period and the penalties imposed u/s 76 and 78 are set aside - appeal disposed off - decided partly in favor of appellant.
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2017 (4) TMI 1084
STPI unit - Rebate claim - N/N. 12/2005-ST - Service Tax paid on input services utilized in the activity of export of services - rejection on the ground of time bar - Held that: - two conditions have been prescribed for satisfaction of Export of Service. First, being remittance for service of India and its receipts by receiver of services abroad and secondly, remittance must have been received in convertible foreign exchange in India - learned Commissioner erred in computing the period of limitation from the date of payment of the input tax.
CENVAT credit - denial on the ground that when services were received some of the premises of the appellant s company were not registered with the Service Tax Department - Held that: - taking notice of the fact that all such unlisted premises had subsequently been registered and recognized for the appellant, and also relying on the ruling of Hon’ble Karnataka High Court in the case of mPortal India Private Ltd [2011 (9) TMI 450 - KARNATAKA HIGH COURT], where it was held that Registration not compulsory for refund - credit allowed.
Rebate claim - Rent-a-cab Operator Service - Held that: - transport expenses (Rent-a-Cab operator service) for holding a conference or training session at any place outside the office premises is allowable and accordingly rebate of the same is also allowable.
Appeal allowed - decided in favor of appellant.
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2017 (4) TMI 1083
Overseas Commission - case against appellant is that the appellant had not paid the Service Tax on Overseas Commission credited to the Overseas Commission Agent (OCA) ledger account and that the transaction between them and OCA was between the associated enterprises - Held that: - the SCN dt. 21.04.2009 could not invoke the allegation of associated enterprises when the law at the time did not provide for the same and the relevant provision was introduced on 10.05.2008, without it being made expressly retrospective.
Extended period of limitation - Held that: - the facts about payment of commission to OCA were well known to the Department prior to the SCN dt. 21.04.2009, the extended period therefore, could not have been invoked in the third SCN.
Appeal allowed - decided in favor of appellant.
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2017 (4) TMI 1052
Liability of tax - the Transporter in this case, though, an individual had rendered service to the appellant/ Assessee, which is a partnership firm - who is liable to pay tax, appellant or service provider? - Held that: - the appellant/ Assessee, being a registered partnership firm, which falls under clause 'g' of Rule 2(1)(d)(v) of the 1994 Rules, would be liable to pay the service tax, in respect of service provided to it, by an individual Truck Operator - the other aspect, as to whether the appellant/ Assessee would be entitled to claim the benefit of Notification dated 03.12.2004, has not been touched upon by the Tribunal - The Tribunal is, consequently, directed to re-hear the parties once again, after giving notice to the parties - appeal allowed by way of remand.
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2017 (4) TMI 1051
Payment under wrong accounting code - demand on the basis that the appellant has not paid the amount collected as service tax on supervision charges under the accounting code “consulting engineering service”. The same has wrongly been paid by the appellant under the accounting code of “technical inspection and certification agency service” - Held that: - it is clear that if the full tax liability has been discharged, payment under a wrong account head will not make the appellant liable to pay the service tax again - matter remanded back to the Original Authority for detailed scrutiny of the total service tax liability of the appellant vis-à-vis the total payment of service tax during the material time - appeal allowed by way of remand.
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2017 (4) TMI 1050
Classification of service - classified under management consultancy services or legal consultancy services - reverse charge mechanism - Held that: - the impugned order did not examine the vital issues before upholding the original order which itself was very brief and did not examine the factual or legal issues, as required before deciding on the refund - there are various factual errors in the impugned order, especially in para 5.3 of the same. We find that the impugned order as it stands cannot be sustained - matter has to go back to the Original Authority for a fresh consideration - appeal allowed by way of remand.
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2017 (4) TMI 1049
Works Contract Service - composite services - case of appellant is that the services provided by them pertain to the period prior to 01.06.2007 and hence only from that date, works contract service was made taxable service under FA, 1994 - Held that: - the matter is no longer res integra. Composite services of the genre provided by the appellant herein prior to 1.6.2007 would fall under the ambit of 'works contract service'. The contention of the appellant that the said services would not be leviable under service tax prior to 01.06.2007 from which date works contract service became taxable is correct. This is the law that has been laid down by the Hon’ble Apex Court in the landmark judgment in the case of CCE & Cus., Kerala Vs Larsen & Toubro Ltd.[2015 (8) TMI 749 - SUPREME COURT]. - appeal allowed - decided in favor of appellant.
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2017 (4) TMI 1048
CENVAT credit - courier/freight services used for delivery/transportation of the goods from port of export to foreign buyers premises - denial on the ground that the goods have been sold by the appellant on Delivered Duty Paid (DDP) basis - whether in the case of export of the goods, place of removal is port of export or not? - Held that: - CBEC circular No. 999/6/2015-Cx dt.28.2.2015 clarifies that that if the seller does not reserve its right for delivery of the goods then destination in the case is the port of export is place of removal of the goods. The same is not in the case in hand. In fact, the respondent has sold the goods on Delivered Duty Paid basis which means that the seller bear all the cost and risks involved in bringing the goods to the place of destination and has an obligation to clear the goods not only for export but also for import, to pay any duty for both export and import and to carry out all Customs formalities. The ownership right of the goods remains with the respondent. Therefore, CBEC circular is not relevant to the facts - credit on courier and transportation charges to the respondent for transportation of the goods to the foreign buyer premises allowed - appeal dismissed - decided against Revenue.
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2017 (4) TMI 1047
Refund of CENVAT credit - input services used for providing output services which are exported - Held that: - there is no dispute to the fact that the respondents herein have exported the services to a recipient situated abroad and for rendering such services, they had engaged the service providers who have discharged service tax liability, of which cenvat credit has been availed - following the decision of the Tribunal in the case of AMP Capital Advisors India Pvt. Ltd. [2015 (6) TMI 122 - CESTAT MUMBAI] the impugned orders are correct - appeal rejected - decided against Revenue.
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2017 (4) TMI 1026
Outdoor catering service - whether the appellant is providing the service of outdoor catering as contended by the Department or involved in trading, that is running a restaurant as contended by the appellant? - Held that: - the activity of the appellant is running a restaurant - in the case of restaurant, the customer's choice of food is limited to the menu card - Sales Tax have been paid on the sale of food items in the restaurant and service tax is not leviable as Sales Tax and Service Tax are mutually exclusive - appeal allowed - decided in favor of appellant.
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2017 (4) TMI 1025
Refund claim - Courier charges - GTA services - Held that: - On going through the Sample invoices, it is found that courier charges have been incurred in the process of export of the goods manufactured by the appellant and as such ‘Courier charges’ to be allowable service for the purpose of refund under N/N. 41/2007.
As regards GTA services, the appellant is entitled to refund being an eligible service.
The appellant is entitled to refund of tax paid on such services received in the course of export - refund allowed - decided in favor of appellant.
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