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Service Tax - Case Laws
Showing 61 to 80 of 205 Records
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2017 (4) TMI 1024
Sub-contract - Management, Maintenance or Repair Services - Manpower Recruitment & Supply Agency Services - The Department entertained a view that as per CBEC Circular No. 96/7/2007-ST dated 23.08.2007 the sub contractor is also liable to pay service tax even though main contractor has paid the tax - Held that: - In the case of Nana Lal Suthar Vs. CCE, Jaipur-I [2015 (9) TMI 1446 - CESTAT NEW DELHI] the Tribunal had analyzed a similar issue and held that the sub contractor is absolved from the liability when the main contractor has discharged the liability on the same services - demand unsustainable.
Renting of Immovable Property Service - The first contention put forward by the appellant is that they would fall within the exemption limit of ₹ 10,00,000/- if RIPS is solely considered to be the taxable service provided by them - Held that: - The services provided by the appellant as sub-contractor are also taxable services, though the liability is discharged by main contractor. Where a taxable service provider provides one or more taxable service from one or more premises, the exemption under notification No. 06/2005-ST dated 01.03.2005 shall not apply if the aggregate of all such services is more than ₹ 10,00,000/-. The MRA and MMR services provided by appellant also being taxable services, the appellant cannot get the exemption of threshold limit of ₹ 10 lakhs.
The renting of immovable property service came into force w.e.f. 01.06.2007 in terms of N/N. 23/2007-ST dated 22.05.2007. Thus the levy on renting of property against the previous levy on services relating to renting of property prior to 01.07.2010 was created retrospectively and therefore, the demand for the extended period is highly irregular - interest cannot be demanded for the demands made on the basis of retrospective amendments.
Appeal allowed - decided partly in favor of assessee.
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2017 (4) TMI 1023
Management, Maintenance or Repair Services - appellant has to manage and operate the plant, machinery and other assets - whether the appellant herein is required to discharge the service tax on the amount received by them under the category of ‘Management, Maintenance or Repair Services’ or otherwise? - Held that: - On perusal of the definition of ‘Management, Maintenance or Repair Services’ for the period involved, it is found that the said definition will not cover the activity undertaken by appellant as the said activities were in the nature of managing the power plant and not providing services under the category of ‘Management, Maintenance or Repair Services’ - demand set aside - appeal allowed - decided in favor of assessee.
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2017 (4) TMI 998
Validity of SCN - Service on partners instead of firm - Held that: - the rent is received by the Partnership Firm, viz; M/s Satyanarayana Paddy Boiled Unit (SPBU). The property is owned by them and property tax is also paid in the name of the unit. The premises was given for lease for sole use as auction platform for tobacco growers to enable them to get better price for their produce. The service provider here is M/s SPBU and not the individual partner. Therefore, the show cause notice/demand raised against one partner/Managing Partner is non est in law - reliance placed in the case of Hindustan Foam Industry Vs. CCE [1989 (9) TMI 274 - CEGAT, NEW DELHI] - appeal allowed - decided in favor of appellant.
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2017 (4) TMI 997
CENVAT credit - input services - case of Department is that the Commissioner (Appeals) has relied upon the judgment passed in the case of M/s Kyocera Wireless (I) Pvt. Ltd Vs Commissioner of S. Tax, Bangalore in [2014 (9) TMI 1036 - CESTAT BANGALORE]. The said order is only an interim order passed by the Tribunal and does not have any precedent value and therefore Commissioner (Appeals) ought not to have relied upon such interim order to allow the credit/refund - Held that: - All the said services have been held to be eligible for credit by various judgments of the Tribunal including the Final Order of this Tribunal. Further, the Commissioner (Appeals) has only remanded the matter for reconsideration by the adjudicating authority. Therefore, I hold this ground put forward by the Department as unacceptable.
CENVAT credit - denial on the ground that service tax was paid with much delay after being pointed out in audit - Held that: - the respondent/assessee is not barred from taking credit in terms of Rule 9(1)(bb) for the reason that Rule 9(1)(bb) bars the availment of credit when the service tax is paid pursuant to the notice issued alleging fraud, suppression of facts and wilful misstatement - credit allowed.
Validity of remand order - Although the Commissioner (Appeals) remanded the matter to adjudicating authority for reconsideration of the issue of eligibility of credit, there is no specific direction made for the remand - Held that: - The Commissioner (Appeals) has given detailed discussion of the issues, facts as well as the law relating to them and thereafter has arrived at the conclusion that respondents are eligible for credit/refund. He has remanded the matter only for the limited purpose of verifying and granting the refund. Sub-section (4) of Section 85 does not limit the powers of the Commissioner (Appeals) to remand a matter.
Appeal dismissed - decided against Revenue.
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2017 (4) TMI 996
Powers of remand of the Commissioner (Appeals) - Section 35A - Held that: - after verifying the contention of the respondents with regard to deposit of Serve tax & Education Cess vide GAR-7/TR-6 Challans dated 07/01/2008, 19/02/2008, 07/03/2008, 26/03/2008, it was felt necessary to give due opportunity to the respondents to substantiate their claim. It is just and proper to uphold the order of remand by the Commissioner (Appeals) - appeal dismissed - decided against Revenue.
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2017 (4) TMI 995
CENVAT credit - input services distribution (ISD) - duty paying documents - the documents on which the credit has been taken are not proper in terms of Rule 9 of CCR, 2004 - time limitation - Held that: - Proviso to Rule 9 states that whenever there is a doubt regarding the documents on which credit has been availed the concerned AC/DC can allow the credit after being satisfied that the credit has been properly accounted - The non registration of the Head office as ISD and the distribution of the credit on documents other than bills/invoices can be considered as procedural infractions - As the appellant succeeds on merits, it is not necessary to enter into the issue of limitation - credit allowed - decided in favor of appellant.
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2017 (4) TMI 994
Short payment of service tax - wrongful availment of abatement under N/N. 12/2003 - non-inclusion of the TDS component in the taxable value of the service - time limitation - Held that: - There were three audits conducted for the periods covered in the SCN. Further, as and when irregularities/objections were pointed out by the audit party, the respondents have immediately complied with the objections and paid the service tax pointed out in the audit report - the SCN issued alleging suppression of facts with an intention to evade payment of service tax is definitely unsustainable - the demand is time barred - appeal dismissed - decided against Revenue.
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2017 (4) TMI 993
Adjustment of the service tax already paid under the wrong head - The appellant has already paid the service tax but, under the wrong head of ECI. But the department has demanded the service tax under the GTA - Held that: - the Circular No. 7/93 dated 23.04.1993 issued by the Board, clearly permitted the transfer of credit balance lying in Personal Ledger Account under one minor head to another minor head - we direct the Jurisdictional Commissioner to make the adjustment of the service tax which has already been paid to the Government exchequer in the proper head - appeal allowed - decided in favor of appellant.
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2017 (4) TMI 992
100% EOU - Refund claim - rejection on the ground that Information Technology Service rendered by the respondent was excluded from the scope of BAS and hence not liable to tax and that the services rendered were not covered within clauses (i) to vii) of the definitions of BAS u/s 65(19) of the FA 1994 - Held that: - even though the export of software is not a taxable service but still the assessee cannot be denied Cenvat credit and that limitation u/s 11 B does not apply for refund of accumulated Cenvat credit - The services referred do not appear to fall within the category of BAS but fall under the category of IT services - it appears that the above aspects were not examined by the lower authority - appeal allowed by way of remand.
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2017 (4) TMI 991
Refund claim - N/N. 41/2007-ST dt 06.10.2007 - denial on the ground of non-fulfilment of certain conditions laid down under Notification - Held that: - in its subsequent order dt.7.10.2010, the Ld. Commissioner (Appeals), after taking into consideration of the documents/evidences being satisfied about the eligibility of refund of Service Tax paid on such services, allowed their Appeal which has been followed by the Adjudicating Authority in its order dtd 08.4.2011 - the matter needs to be remanded to the Original Authority to decide the issues afresh - appeal allowed by way of remand.
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2017 (4) TMI 990
CENVAT credit - capital goods - 100% credit availed in the same financial year - Held that: - the appellant does not have the proof that they have reversed the irregularly availed credit - the unutilised credit of 50% is shown as credit availed by appellant and the period is prior to 1.4.2011. Therefore, the demand of interest is justified. However, as the appellant was eligible to take credit of the balance 50% in the subsequent year, no penalty can be imposed - appeal allowed - decided partly in favor of appellant.
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2017 (4) TMI 954
Management Consultancy Services - appellants carried out various research, development project, training programmes, acting as nodal agency on behalf of different Ministries of the Central Government and Madhya Pradesh Government. Revenue entertained a view that the appellants are liable to service tax in respect of these activities carried out on behalf of the various government Ministries - case of appellant is that the appellants did provide service, which can be categorized under the various taxable categories like “Consulting Engineer, Convention Service, Management Consultants and Market Research Agency” and it cannot be said that they are an arm of the Government and they are rendering these services as an executory function of the Government.
Held that: - The appellants were to submit full records of the expenditure with reference to each project to the concerned Ministry. Any surplus of the amount given as grant should be returned to the Government. We find that the decision of the Tribunal in Apitco Ltd. [2010 (7) TMI 176 - CESTAT, BANGALORE], is squarely applicable to the facts of the present case where there was no payment, by any government to the assessee, of any amount in excess of what is called "grant-in-aid". Thus any service provider-client relationship between the assessee and the governments is ruled out. The appellants are not liable to service tax in respect of these activities carried out, by using the grant-in-aid given by the various Ministries/departments of the Government.
Though the appellant claimed in the appeal that the invoices indicated that the amount is inclusive of service tax, no evidence is submitted to support such contention. As such, we find that the same requires verification of the actual invoices by the jurisdictional officer.
CENVAT credit - denial on the ground that the invoices were not in the appellant’s name but were not in the name of branch/head office - Held that: - denial of credit only on the ground that the address of branch office or head office was mentioned instead of appellant’s address cannot be the ground for denial of otherwise eligible cenvat credit.
Appeal allowed - decided in favor of appellant.
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2017 (4) TMI 953
CENVAT credit - irregular availment - Department alleged that as the service provider of security service discharged 100% of the tax liability, they have paid in excess 75% of service tax. Further, since liability to pay 75% has not been discharged by the appellant, that amounts to non-payment of service tax to that extent and hence they have appeared to have availed excess cenvat credit - Held that: - There could no dispute that service tax leviable has been fully paid. This fact will therefore satisfy the requirement of Rule 3 ibid and particularly, when such tax liability has been passed on to the appellant and they have also made payment thereof to the service provider, there can be no denial to them of such cenvat credit - credit allowed - appeal allowed - decided in favor of appellant.
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2017 (4) TMI 952
Renting of immovable property service - case of Revenue is that though the accommodation is for residential purpose, ultimately such letting out improves the business or commerce of the appellant as well contractors, who took the accommodation on rent. Since the property is used for furtherance of business or commerce, the renting of immovable property service is liable to tax - Held that: - the actual usage of the property for a particular purpose will decide the nature, either ‘residential‘ or used in ‘furtherance of commerce or business‘. The nature of contracting parties or the occupation of the occupant has no relevance to decide the scope of the tax entry - Explanation-I to the tax entry explains the scope of the term, for use in course or furtherance of business or commerce’. It includes use of space in an immovable property as factories, office, buildings, warehouses, theatres, exhibition halls and multiple use buildings. Admittedly, in the present case, the property has not been used for any one of these purposes - demand withheld - appeal allowed - decided in favor of appellant.
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2017 (4) TMI 951
CENVAT credit - inputs - input services - Held that: - the steel, cement and such other items have been used to construct the building which is used by appellant to provide the output service of Renting of Immovable Property. Therefore, the credit availed on inputs by appellant prior to 01.04.2011 is eligible for credit - The credit availed on cement, steel etc., as inputs which are used for construction of building after 01.04.2011 is not admissible as per definition of inputs w.e.f. 01.04.2011. From the above, the credit availed on inputs by appellant after 01.04.2011 is not eligible for credit.
Input services - The department has denied credit alleging that all these services are for setting up of premises of the appellant and therefore not admissible - It is the case of appellant that the input services were not availed for setting up of the premises, but the services were availed only for modernization and renovation of the premises - Held that: - The period involved in this issue is after 01.04.2011 only. The definition of input services w.e.f. from 01.04.2011 also underwent amendment, whereby the services relating to setting up of factory/premises of provider of output service was deleted from the definition - From the table itself it is clear that the services are not per se for construction of building or setting up of premises and these are merely renovation/modernization works. The services in the table show that these are construction services for laying the flooring, Erection of Machinery, Electric Installation Works, Single Leaf Door, Installation Boom Barriers, Electrical Consultancy Charges. Since these services would fall within the category of modernization, renovation services which come within the inclusive part of the definition of input services, the services are eligible for credit.
Extended period of limitation - credit availed on inputs after 01.04.2011 - Held that: - the eligibility of credit was interpretational issue, and appellants were under bonafide belief that credit is admissible while availing the credit - there is no evidence to establish that appellant had availed the irregular credit on inputs after 01.04.2011 by suppression of facts with an intention to evade payment of duty - the extended period is not invokable.
Appeal allowed - decided in favor of assessee.
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2017 (4) TMI 950
Rejection of refund claim - N/N. 41/2007 - rejection on account of time limitation - Held that: - The appellant has confined the contest to refund claim in respect of October 2007 to December 2007 in the present appeal. If the period of six months is computed as provided in the amendment of 32/2008-ST the refund claim is well within the period of six months. The amendment dated 18.11.2008 uses the word that for the words sixty days the words six months shall be substituted - impugned order to the extent of rejecting the refund claim for quarter October 2007 to December 2007 is set aside - appeal allowed - decided partly in favor of assessee.
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2017 (4) TMI 949
Imposition of penalty u/s 78 of FA, 1994 - It was revealed that respondents had actually received higher taxable value than that was disclosed in their returns. As it appeared to department that respondents were not co-operating a further search was conducted in their premises on 27.07.2006 and certain documents were recovered - Held that: - the respondent has furnished details to the department only after repeated intimations. Even after that, the department was able to collect proper data for quantification of the demand of service tax only after conduct of search in the premises of the respondent and also after approaching the clients of the respondent. This itself is sufficient evidence to establish that the respondent is guilty of suppression of facts - The law laid u/s 78 of the FA, 1994 mandates imposition of equal penalty when suppression of facts are established. The adjudicating authority imposed penalty of ₹ 35 lakhs which in my view is in excess of that which is allowed in the said provision. However, the respondent is liable to pay equal penalty which is ₹ 32,87,607/- of the service tax confirmed in appeal no. 258/2009 and ₹ 12,26,432/- in appeal no. 259/2009 - appeal allowed - decided in favor of Revenue.
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2017 (4) TMI 948
Mandap Keeper Services - the hotel rooms hired by the persons at the time of hiring the mandap/garden area to conduct marriage etc - Revenue case is that room rent received is also to be considered as an amount received in connection with providing “Mandap Keeper Services” - Held that: - The Tribunal examined similar set of facts and held that such room charges for letting out the rooms in the hotel cannot be included in the ‘Mandap Keeper Service’ for service tax liability - Reference can be made to the decision of the Tribunal in the case of Rambagh Palace Hotels Pvt. Ltd. Vs. Commissioner of Central Excise, Jaipur, [2013 (12) TMI 556 - CESTAT NEW DELHI] - appeal allowed - decided in favor of assessee.
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2017 (4) TMI 947
Valuation - freight - outward movement of goods of the bread division - inapplicability of N/N. 34/2004-ST dated 3rd December 2004 - case of Revenue is that each consignment was freighted at a cost below the threshold prescribed therein was not evidenced - Held that: - Taxability is a primary requisite for raising a demand and in the absence of law providing for levy of the tax, a demand cannot be allowed to sustain merely owing to procedural rigours - it is in the fitness of things that coverage u/s 65(105)(zzp) of FA, 1994 needs to be ascertained despite being raised for the first time before first appellate authority and if so, the extent to which the freight is excluded from the purview of tax. As facts pertaining to the legal issue requires to be examined, it would be appropriate for the original authority to undertake this task - matters remanded back to the original authority to consider the plea of the appellant that the goods were transported by individual truck owners - matter on remand.
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2017 (4) TMI 946
CENVAT credit - ISD invoices are not proper - The department entertained a view that since the invoice is issued to the appellants R&D unit, the same is not eligible for credit on the ground that R&D unit is not providing any output service - Held that: - The credit is solely denied for the reason that R&D cannot be considered as output services or input services, because such services do not have nexus with services exported - The Ld. Counsel also argued on the grounds of limitation. This contention of the department that CENVAT credit taken by the appellant attributable to their R&D unit is irregular, does not have any merits - credit allowed - decided in favor of appellant.
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