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Service Tax - Case Laws
Showing 1 to 20 of 185 Records
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2017 (7) TMI 1464
Rectification of mistake - mistake apparent on record or not - HELD THAT:- The Final Order M/S. KAJARIA CERAMICS LTD. & ORS. VERSUS C.C.E. JAIPUR-I [2016 (11) TMI 1752 - CESTAT DELHI] passed by the Tribunal is modified and in the title of the order, ‘Arising out of Order-in-Appeal No. 433 (DKV)ST/JPRI/2010’, the words ‘434’ is also added.
ROM application allowed.
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2017 (7) TMI 1457
Levy of service tax - business auxiliary service or not - distribution for recharge vouchers, electronic coupons and starter packs of M/s. VCL - Department was of the opinion that the income earned on resale of recharge vouchers and electronic coupons, starter packs is a discount or commission provided by M/s. VCL - HELD THAT:- The issue whether the sale and purchase of SIM cards, recharge coupons, starter packs would amount to business auxiliary service has been settled by the judgment in the case of THE COMMISSIONER OF CENTRAL EXCISE VERSUS M/S. BHARAT CELL [2015 (10) TMI 1111 - MADRAS HIGH COURT] wherein the ratio of the decision laid down in GR. MOVERS AND MARTEND FOOD AND DEHYDRATES PVT. LTD. VERSUS COMMISSIONER OF CENTRAL EXCISE, LUCKNOW [2013 (6) TMI 339 - CESTAT NEW DELHI] was referred. The other decisions of the honourable High Courts of Allahabad as well as Kerala have taken similar view. The demand also includes the amount reflected in the credit notes issued by M/s. VCL to appellant.
The demand is also made on the margin earned by the appellant for outright purchase and sale of pepsico products. It is not disputed that the appellants in these appeals have discharged VAT on the products sold by them. Therefore, the Department cannot demand service tax basing upon the distribution agreement entered into with M/s. Pepsico Holdings (India) Pvt. Ltd. The judgment relied upon by the learned counsel for the appellant in the case of BHARAT PETROLEUM CORPN. LTD AND HINDUSTAN PETROLEUM CORPN. LTD VERSUS COMMISSIONER OF SERVICE TAX [2014 (7) TMI 159 - CESTAT MUMBAI] is squarely applicable to the said issue.
The demand is unsustainable - The impugned orders are set aside - Appeal allowed.
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2017 (7) TMI 1391
Maintainability of appeal - the appeal is of the year 2007 and it has been pending before the Tribunal for more than a decade. Ahead of the transition of Indirect Tax to GST, this Tribunal has been given a mandate to dispose of all old cases at least prior to 2007 - HELD THAT:- It would be appropriate and prudent to close the file for the purpose of statistics.
It is made clear that the appeal along with stay order / interim orders, if any, will continue before the Tribunal and the matter is closed only for the purpose of statistics - Both sides are at liberty to file application before the Tribunal to reopen the matter as and when the case is disposed by the Hon’ble High Court or in case of any change of circumstance.
The appeal is disposed as file closed.
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2017 (7) TMI 1378
Non-payment of service tax - mining services - issuance of letter to the garnishee for recovery of the dues by collecting those money - allegation against the Petitioners is that they have not paid the service tax for quite some time including the year 2016-17 and therefore it has been necessitated for the department to issue a letter to the garnishee for recovery of the dues by collecting those money which the management of SECL was to pay to the Petitioners - HELD THAT:- Undisputedly, in the year 2016-17, there has been no proceeding drawn against the petitioner-firm by the Respondents for assessment of the default in payment of service tax. It is also not in dispute that no show cause notice also has been issued to the Petitioners for the default, if any, for the year 2016-17. The show cause notice which is being referred to by the Respondents in their reply, is for the assessment year 2011-12 to 2015-16. This, in the opinion of this Court, is not proper, legal or justified. The Finance Act clearly envisages certain provisions of law which deal with the taxable service for charging the service tax. Section 72 deals with the provision for best judgment assessment, which a person or an establishment which is liable to pay service tax is supposed to do.
A perusal of these two Sections would clearly reflect that there has to be a proper legal proceeding drawn so far as default of payment in service tax is concerned and an order has to be passed against the concerned and only then can the recovery proceeding or freezing proceeding or the order of freezing could have been passed - In the instant case, since no proceeding has been drawn, no show cause notice has been issued, no determination has been done, the impugned order (Annexure P-1) asking the SECL to detain the amount payable to the petitioner-firm until the amount is paid, is not sustainable and the same is accordingly set aside/quashed.
Petition allowed - decided in favor of petitioner.
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2017 (7) TMI 1368
Validity of Garnishee Notices - Freezing of amount payable to the petitioner-establishment - solitary ground of challenge by the Petitioners to these impugned orders is that there has been no determination made by the Respondents assessing the actual amount of default on the part of the petitioner-establishment upon which the recovery proceedings could have been initiated - HELD THAT:- Before initiating proceeding under Section 87, the authorities ought to have initiated appropriate assessment proceeding and determination of the amount payable by the establishment and a demand notice also needs to be issued and only in the event of the demand notice not being satisfied, the proceedings under Section 87 can be initiated - In the instant case, when we look at the reply submitted by the Respondents, we do not find any such adjudication done under Section 73 of the Act. Neither from the reply nor from the submissions made by the Respondents, do we find any demand notice being raised against the Petitioners at any point of time and it is only the garnishee notices and a freezing order straightaway issued, Annexure P-1 to the management of SECL and Annexure P-2 to the Union Bank of India.
This Court has no hesitation in reaching to the conclusion that the garnishee notices issued to the SECL and Union Bank of India were totally uncalled for and the authorities ought not to have issued such notices before a final determination is done - Petition allowed.
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2017 (7) TMI 1325
Business Auxiliary Services - providing space in the show room to bank and financial institution for selling of their loan product for which they are receiving the commission - demand of service tax on such commission - HELD THAT:- Considering the Larger Bench decision in M/S PAGARIYA AUTO CENTER VERSUS CCE, AURANGABAD [2014 (2) TMI 98 - CESTAT NEW DELHI (LB)], which decided the issue that amount received as commission from the bank of financial institution for the sale of the loan is liable for service tax - demand upheld - appeal dismissed.
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2017 (7) TMI 1323
Scope of show cause notice - demand was raised under the category of BAS - demand was confirmed under the different category - HELD THAT:- Appeal admitted.
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2017 (7) TMI 1301
Condonation of delay in filing appeal - delay of 23 days beyond the period of two months prescribed in section 85 of Finance Act, 1994 - Time Limitation under section 85 of Finance Act, 1994 - HELD THAT:- On a perusal of the order-in-original it is seen that the second paragraph in the pre-amble to the order has intimated a time-limit of three months for filing appeal before the first appellate authority. It was pleaded before the first appellate authority that the appeal was filed beyond the period of two months on the presumption that this instruction in the pre-amble reflected the statute.
In view of the obvious mis-information which led to the consequences narrated above, the denial of a decision on merit on the part of the first appellate authority, who should have condoned the delay on the circumstances alone, is not in accordance with law.
Matter remanded back for the decision on merits.
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2017 (7) TMI 1297
Enhancement of penalty u/s 78 of FA - denial of eligibility for exemption as ‘export of services’ - supply of vessels to customers located overseas during the period from 1st July 2012 to 30th September 2014 for a tenor of less than 30 days - HELD THAT:- Respondent is a public sector undertaking and have promptly discharged tax liability of over ₹ 2 crores along with interest. The show cause notice is bereft of any evidence of misrepresentation or suppression of facts. The levy of tax was determined ultimately on an interpretation to which the respondent forbore to raise any significant objection.
It is moot whether there was any requirement under law to proceed with issue of show cause notice. Having issued show cause notice, the proceedings having culminated and penalty imposed under section 78 to the extent of 15% of the tax dues, which survives only on account of non-challenge on the part of the respondent.
The appeal of Revenue for imposition of full penalty fails to sustain - appeal dismissed.
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2017 (7) TMI 1268
Waiver of penalty u/s 77 and 78 of FA - service tax along with interest paid belatedly - cable operator service - bonafide belief regarding non-liability to tax as the services may not fall under the category of cable operator service - Held that:- Admittedly, the television signals received from satellite is managed and handled through various layers of persons/ activities till it reaches the ultimate customer. The appellants role is as an inter mediatory and apparently there could be a bonafide belief on their part regarding the tax liability under the said category - Considering scope of definition under Section 2 (aa) of the said Act there is a possibility of bonafide belief for non-tax liability.
This is a fit case for invoking the provision of Section 80 for waiver of penalties imposed on the appellant - penalty set aside - appeal allowed - decided in favor of appellant.
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2017 (7) TMI 1239
CENVAT Credit - various input services - Renting of Immovable Property Service - Chartered Accountants Service - Repairs and Maintenance Service - Share Registry Service - Accounting Service - All India Glass Manufacturer Membership Service - Courier Service - Air Travel Agent’s Service - Insurance Policy for the factory building, Plant Machinery.
Held that:- The Cenvat credit availed on service tax paid on input services, namely, Renting of Immovable Property Service, Insurance Premiums in relation to factory buildings, Courier Service, Advertisement Service, Accounting Service, Share Registry Service and Air Travel Agent’s Service etc., are held to be input service within the definition of Rule 2(l) of CCR,2004 and admissible to credit in various judgements cited.
The CENVAT Credit amount of ₹ 2,38,560/- has been accepted as inadmissible accordingly the same is recoverable with interest and penalty is reduced accordingly to ₹ 25,000/-.
Appeal allowed in part.
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2017 (7) TMI 1238
Refund claim - invocation of Export of Service Rules, 2005 - N/N. 27/2012-CE (NT) dated 18.6.2012 - Held that:- The appellant fulfills the conditions mentioned under Rule 6A of the Service Tax Rules, 1994 and the subject services are covered as export of service - refund allowed - appeal allowed - decided in favor of appellant.
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2017 (7) TMI 1233
Consulting Engineer Services - Reverse Charge Mechanism - demand of service tax - whether service tax of ₹ 1,31,98,941/- has been rightly demanded under “Consulting Engineer Services” from the appellant under reverse charge mechanism along with equal amount of penalty under Section 78 as well as penalty under Section 77 (1) (a) of the Finance Act? - extended period of limitation.
Held that:- The payment made by the appellant company is for transfer of technology under intergovernmental agreement and not for receipt of any services in India in relation to business or commerce - under Section 65 (105)(g) “taxable service” under ‘consulting engineers service’ means provided or to be provided to a client by consulting engineer in relation to advise consultancy or technical assistance in any manner in one or more disciplines of engineering.
In the present facts and circumstances, there is no relation of any Consulting Engineering Service with any client or appellant. Thus, Service Tax is not attracted under the head “Consulting Engineer Services” on reverse charge basis.
Appeal allowed - decided in favor of appellant.
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2017 (7) TMI 1231
Scope of show cause notice - demand was raised under the category of BAS - demand was confirmed under the different category - Held that:- Delay condoned - appeal admitted.
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2017 (7) TMI 1226
Maintainability of appeal - issues concerning rate of duty - Section 35G of the Central Excise Act, 1944 - Held that:- The issues sought to be raised herein is as to whether the activity of the Respondent would fall within the definition of “consulting engineer” for the relevant period. This essentially is a question as to rate, if any, at which duty leviable is to be paid. Such issue is excluded from the purview of the jurisdiction of the High Court in terms of Section 35G of the Act - appeal dismissed being not maintainable.
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2017 (7) TMI 1222
Classification of services - transportation of coal within the mine - Held that:- The issue is covered by the decision in the case of COMMISSIONER OF CENTRAL EXCISE AND SERVICE TAX, RAIPUR VERSUS SINGH TRANSPORTERS [2017 (7) TMI 494 - SUPREME COURT], where it was held that a mine is not to be understood necessarily in respect of pit-heads of the mining area or the excavation or drilling underground, as may be, but also to the peripheral area on the surface - appeal dismissed - decided against Revenue.
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2017 (7) TMI 1205
Banking and other Financial Services - amount received towards commission merchants establishment commission for promoting credit card users to access the hotel for making the payments - Held that:- The issue stands decided by the Larger Bench of the Tribunal in the case of Standard Chartered Bank Vs. CST, Mumbai-I [2015 (8) TMI 686 - CESTAT DELHI (LB)] wherein Larger Bench has held that prior to 01.05.2006, credit card services or other payment card services to be classified banking/financial services only these services provided by an issuing bank to an acquiring bank - appeal allowed - decided in favor of appellant.
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2017 (7) TMI 1190
The Revenue has challenged the order passed in the relied upon case before the Madhya Pradesh High Court. The said appeal is pending before the High Court - the appeal is disposed of with liberty to the petitioner to approach the High Court against the present impugned order.
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2017 (7) TMI 1187
Extended period of Limitation - Section 73(1) of Finance Act - Whether the CESTAT has committed an error of law in deciding the issue of limitation, especially on account of strong documentary evidence provided by the Department?
Held that:- The period covered by the SCN was from January 1, 2010 to March 19, 2010. The SCN was dated 31.03.2013. Similarly, for demand pertaining to 'development and supply of content service' the period involved was 2007-08 to 2010-11 and the SCN was issued after eighteen months limitation period invoking the extended period of limitation. The reason given for invoking the extended period was that above facts came to the notice of the Department only during scrutiny of records e.g. ledger, balance sheet, invoices, cenvat credit accounts etc., maintained by the respondent and such details were not disclosed to the department at any stage in any report or returns and thus, the respondent had suppressed the facts and the proviso to Section 73(1) of the Finance Act, 1994 was applicable to the instant case.
SCN itself shows that every details was maintained by the respondent in their usual course of years. They had not suppressed or manipulated any fact to evade the payment of service tax or to avail Cenvat credit. When the ingredients of proviso to Section 73 (1) of the Act were not present, the invocation of extended period of limitation was not correct to issue SCN.
Appeal dismissed - decided against Revenue.
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2017 (7) TMI 1182
Refund of Service tax paid - tax was paid under protest - services being provided to their own members of the club - Club or Associations Services - rejection of refund on the ground of time limitation and unjust enrichment - Held that:- Having held that service tax was being paid “Under Protest”, the limitation prescribed under Section 11B will not apply - the refund claim by the appellant has to be held as having been filed with limitation.
Unjust Enrichment - Held that:- The club, while providing services to its members, have not provided the same to a second person and such services have been held to have been provided to the club itself or to the member themselves - For invoking the principle of 'unjust enrichment’, the presence of two different parties, distinct from each other is required and it has to be held that the tax collected by the one, who is claiming the refund of the same has already been collected by him from the other party and the refund of the same cannot be allowed so as to make first party as unduly enriched - When services stands provided to himself only, and there is no second party, it cannot be said that the club would become unduly enriched by collecting the service tax from its members as well as by claiming the same as refund inasmuch as club and members have been held to be the same by various High Courts.
The Tribunal in the case of Karnavati Club Ltd. vs. Commissioner of Service Tax, Ahmedabad [2013 (5) TMI 752 - CESTAT AHMEDABAD] has examined an identical issue and has held that members are not to be seen separately as client or customers. Services rendered to self cannot be equated with services rendered to client or customers and as such it has to be held that assessee passed hurdle of the principles of 'unjust enrichment’.
Appeal allowed - decided in favor of appellant.
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