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Service Tax - Case Laws
Showing 21 to 40 of 185 Records
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2017 (7) TMI 1154 - SC ORDER
Classification and Taxability - mining service - service provided by the appellants for transportation of goods within the mining area - the decision in the case of M/S. SARVMANGLA CONSTRUCTION CO., M/S. BARBRIK PROJECT LTD. AND M/S. MADAN LAL AGRAWAL VERSUS C.C.E. & S.T., RAIPUR [2016 (9) TMI 1023 - CESTAT NEW DELHI] contested - Held that:- Delay condoned - the decision in the above case upheld - appeal dismissed.
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2017 (7) TMI 1128 - CESTAT MUMBAI
Refund of CENVAT credit - export of services - denial of refund paid as service tax to providers of input services used in rendering 'scientific and technical consultancy service' to recipients outside India - denial of refund as held to be ineligible while some others could not be linked to the output services that were exported leading to disallowance of claim - place of provision of service -
Held that:- An identical dispute had been decided by this Tribunal in Commissioner of Central Excise, Pune - I v. Sai Life Sciences Ltd [2016 (2) TMI 724 - CESTAT MUMBAI], where it was held that the benefit of the service accrued to the foreign clients outside the Indian territory, by no stretch of imagination can it be said that there was no export of service - refund to be allowed.
Challenge to sanctioned amount in review proceedings - no SCN issued - whether it was legal and proper for the appellate authority to hold to the detriment of an assessee by recourse to a belated and indirect notice in the form of an appeal by Revenue? - Held that:- The statute does not specifically provide for enhancement of refund beyond that was claimed but specifies that there is scope for enhancement of that which was restricted subject to sufficient cause being shown to the respondent. This would presume that the enhancement detriment in appeal is limited to the show cause notice with which the proceedings leading to the appeal commenced. Such a show cause notice has not been issued in the present instance.
The proper course of action for Revenue to dispute the sanction of refund claim by the original authority should have been the issue of a notice under section 73(1) of Finance Act, 1994. The failure to issue such a notice stultifies the present proceedings before the first appellate authority. The impugned order fails to meet the requirement of the statute and is consequently set aside.
Appeal allowed.
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2017 (7) TMI 1111 - CESTAT BANGALORE
CENVAT credit - outdoor catering service by the employer within the factory premises - Held that: - Since there is divergence of view in the Benches of Tribunal on the very same issue, the matter should be referred to President for constituting a Larger Bench and settling the law on the issue - matter referred to Larger Bench.
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2017 (7) TMI 1109 - CESTAT NEW DELHI
Refund of service tax - services used for export - N/N. 17/2009-ST dated 07.07.2009 - THC charges - bills of lading charges - origin haulage charges - repo charges - rejected on the ground that same are not covered under port services - Held that: - the issue is settled in favour of the appellant vide Tribunal’s decision in the case of Shivam Exports & Ors. Vs. CCE Jaipur vide [2016 (2) TMI 259 - CESTAT NEW DELHI], where it was held that Refund of service tax paid on THC Charges, REPO Charges, BL charges, DDC Charges and hollage charges is admissible in as much as the same are the port services - refund allowed.
CHA services - denial on the ground that the license number and copy of license is not produced - Held that: - there is no dispute that the service tax has been paid by the service provider under CHA category and such invoices are available in the record - refund allowed.
Refund of service tax paid on commission - rejection for the reason that such commission was not required to be paid in view of the exemption notification no. 18/2009 - Held that: - Since there is no dispute that the tax has been paid even though exemption is available, refund on such service tax paid cannot be denied - refund allowed.
Part of the refund also stands rejected for non-submission of original invoices - Held that: - certified photo copies of such documents stands submitted - refund cannot be denied.
Appeal allowed - decided in favor of appellant.
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2017 (7) TMI 1084 - CESTAT, BANGALORE
Penalty - tax collected but not deposited to the Government - whether the appellant herein is required to be penalized under various Sections of the Finance Act 1994? - Held that: - the appellant had failed to declare the correct taxability in the ST-3 return, suppressed the value of taxable services and also did not deposit tax collected from their customers into Government treasury - if the Department had not conducted the detailed investigation, the entire non-payment of tax would have gone unnoticed and escaped detection - penalty upheld - appeal dismissed.
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2017 (7) TMI 1066 - MADRAS HIGH COURT
Maintainability of petition - alternative remedy of appeal - Principles of Natural Justice - Held that: - The question as to whether the building put up by the petitioner falls within the definition of construction of residential complex is purely a question of fact. That apart, the question of limitation also is not purely a question of law but a mixed question of fact and law. The challenge is with regard to invocation of extended period of limitation. This aspect has to be factually challenged by the petitioner. Thus, for all the above reasons, the writ petition cannot be maintained and the petitioner has to necessarily avail the alternate remedy of appeal provided under the Act - petition dismissed being not mi=aintainable.
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2017 (7) TMI 1039 - CESTAT MUMBAI
Construction of complex service - the entire defence of the appellant is based on the arguments that MHADA is a philanthropic/non-profit organisation and therefore, the activities conducted by them are not of commercial nature - Ministry of Finance Circular No.B2 8/82004-TRU dated 10/09/2004 - Held that: - The clarification relied upon by the appellant in Circular dated 10/09/2004 is a clarification issued with reference to commercial and industrial construction service. The demand has however been issued under construction of complex service as defined under Section 65 (30 a) of the Finance Act, 1994 in respect of construction of residential complex, commercial or otherwise nature of the construction is irrelevant - The so-called bonafide belief of the appellant was based on the non-commercial nature of MHADA. It can be seen from the definition above that the word “commercial’ itself does not figure in the said definition - appeal dismissed - decided against appellant.
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2017 (7) TMI 1038 - CESTAT ALLAHABAD
Rectification of mistake - date of realization of the export proceeds has been wrongly submitted - Held that: - I allow correction of the date from 29/02/2014 to 29/08/2014 in last but one sentence of Para 4 of said Final Order No.A/170760-70761/2016 dated 31/08/2016. Further, I hold that all other contentions in the said Para 5 of the ROM Application are totally wrong when compared with the record as reflected in above stated Para 13 of Appeal memorandum so far as it related to allegations made against counsel and facts on record. I, therefore, hold that there was no mistake apparent of the facts on the face of record save as corrected in respect of typographical mistake about date which was recorded as 29/02/2014 - ROM application allowed.
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2017 (7) TMI 1037 - CESTAT BANGALORE
Refund of unutilised CENVAT credit - Scientific and Technical Consultancy Services - Held that: - the learned Commissioner (Appeals) has wrongly rejected the refund of cenvat credit on ‘Scientific and Technical Consultancy Services' without any basis by wrongly holding that the said service is not an ‘input service' - this service is very much part of the input service and it is directly linked with the output service of the company - appeal allowed - decided in favor of appellant.
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2017 (7) TMI 1036 - CESTAT CHANDIGARH
Business Auxiliary Service - VCES Scheme - appellant submitted the prescribed declaration before the Punjab National Bank (PNB) and not before the designated authority prescribed under the scheme - Held that: - rejection of VCES application cannot be reopened at this stage after more than a year of Order-in-Original rejecting VCES declaration - Since the entire arguments and case laws cited by the appellant are in relation to the Order-in-Original dt. 18.09.2014, which has already attained finality, I do not see the need to deal with the case laws cited by the appellant - appeal dismissed - decided against appellant.
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2017 (7) TMI 1035 - CESTAT BANGALORE
Maintainability of appeal - pre-deposit - non-compliance of the provisions of Section 35F of the Central Excise Act 1944 made applicable to Service Tax - Held that: - It is a fact that the appellant had filed this appeal without mandatory pre-deposit as required under Section 35F of the Central Excise Act 1944 as made applicable to Service Tax vide Section 83 of the FA 1994 - the present appeal is not maintainable without the mandatory pre-deposit as provided under Section 35F of the Central Excise Act 1944 - appeal dismissed being not maintainable.
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2017 (7) TMI 993 - CESTAT CHENNAI
Business Auxiliary Services - mobilization of deposits/debentures, delivering deposits/debenture receipts, and providing other incidental services - whether the activities carried out by the appellant would fall under the scope of BAS under Section 65 (19) of the Finance Act, 1994 as it stood prior to 10.09.2004 before its amendment? - Held that: - it is seen that the adjudicating authority has found that the appellant accepted application forms from investors applied for debentures/deposits of their client and in a fiduciary capacity on behalf of those companies in handling the applications from the investors; that they have to coordinate with these companies in the advertisement, canvassing and that they have to identify prospective customers for lending based on predetermined criteria.
Time limitation - Held that: - It has to be seen that appellants were discharging service tax under Banking and Financial Services and were filing regular returns - It is correct that there was confusion prior to 10.09.2004 as to whether all the services rendered on behalf of client would fall under BAS - when the appellant has written letter dated 29.10.2004 immediately, the fact has come to the knowledge of department and therefore in our view the SCN dated 02.05.2006 is time barred.
Appeal allowed - decided in favor of appellant.
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2017 (7) TMI 992 - CESTAT KOLKATA
Business Auxiliary Services - It was noticed that the respondent had not amended the registration certificate to include BAS and also did not mention the same in their ST-3 returns. However, the respondent took a separate registration on 05.09.2006 in respect of BAS - Held that: - at the instance of the Central Excise Officers, they paid vide cash, the entire tax alongwith interest before issuance of the Show Cause Notice. In any event, the respondent was entitled to avail CENVAT Credit and the situation is Revenue neutral - appeal dismissed - decided against Revenue.
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2017 (7) TMI 991 - CESTAT CHANDIGARH
Refund claim - N/N. 41/2007-ST dated 10.06.2007 - rejection on account of time bar - Held that: - the similar issue came up before this Tribunal in the case of Gran Overseas Ltd. [2017 (1) TMI 234 - CESTAT NEW DELHI] wherein this Tribunal has held that the time limit prescribed in notification issued from time to time is to supplement the provision of mere act - the clarifications given by the CBEC vide Circular dated 12.03.2009 is merely a clarification and the same is applicable retrospectively - the refund claims filed by the appellants are within period of limitation - refund allowed.
Refund claim - clearing and forwarding services - CHA Services - denial on the ground that the services are not port services - Held that: - these services are related to the CHA services and not clearing and forwarding services and they have wrongly mentioned as clearing and forwarding services. It is fact on record that these services received from the CHA - refund allowed.
Refund claim - services relating to collection of foreign exchanges - Held that: - the service tax was collected by the bank for realization of export proceeds and vouchers were issued by the bank. Therefore, there is no dispute about export of goods and charges collected by the bank for realization of export proceeds. Thus, refund claim is not deniable for the procedural lapses, if any and the same should be allowed.
Refund claim - cleaning services - technical testing and analysis services - Held that: - since the appellant is not pressing for refund on this ground, the same is rejected.
Refund allowed - appeal allowed - decided in favor of appellant.
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2017 (7) TMI 990 - CESTAT NEW DELHI
VCES declaration - the appellant case is that they had mistakenly applied the rate of tax at 10%, instead of the prescribed rate of 12%. He further submits that the differential amount of service tax was paid along with interest suo moto and thus, the VCES declaration filed by it was true to the extent of 99.87% - Held that: - since the value declared in the VCES declaration was true to the extent of 99.87%, it cannot be said that such declaration is ‘substantially false’ for denial of the benefit provided under the VCES Scheme. Thus, in terms of the CBEC Circular No.170/5/2013-ST, dated 08.08.2013, there was no requirement of issuance of any show cause notice, seeking confirmation of the adjudged demand.
It is not the case of Revenue that the appellant otherwise is not entitled for availing the benefits contained in the VCES Scheme. Thus, denial of the benefits contained therein for a technical lapse is not proper and justified.
Appeal allowed - decided in favor of appellant.
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2017 (7) TMI 989 - CESTAT ALLAHABAD
CENVAT credit - Chartered Accountant Services - common input services - Security Service - Telephone Service - Held that: - where contention of the assessee was that their transaction was covered by provisions of Sub-rule (1) of Rule 6 of CCR, 2004, it was necessary for Revenue to establish in the Show Cause Notice that the said transaction attracted provisions of Sub-rule (2) of said Rule 6 that Cenvat Credit was availed in respect of such input services to such extent that they were used for providing both taxable & exempted services and no separate account was maintained and hence provisions of Sub-rule (3) of Rule 6 ibid were invocable - I do not find from the said Show Cause Notice that Cenvat credit was availed on such quantity of input service which was used for providing exempted output service and the situation was covered by Sub-rule (1) of said Rule 6. Therefore, there was no case for invocation of Sub-rule (3) of said Rule 6.
The said SCN dated 13/03/2015 is not sustainable - appeal allowed - decided in favor of appellant.
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2017 (7) TMI 968 - CESTAT BANGALORE
100% EOU - refund of unutilized CENVAT credit - scope of input services - consultancy services - maintenance and repair services - labour contract services - clearing services - Rule 5 of the CCR, 2004 - Held that: - the disputed services herein fall in the definition of input services and therefore the appellant is entitled to refund of CENVAT credit under Rule 5 of the CCR 2004 - reliance placed in the case of M/s. Coca Cola India Pvt. Ltd. Versus The Commissioner of Central Excise, Pune-III [2009 (8) TMI 50 - BOMBAY HIGH COURT], CST, DELHI Versus CONVERGYS INDIA PVT. LTD. [2009 (5) TMI 50 - CESTAT, NEW DELHI] and Circular No 120/01/2010-ST dated 19.1.2010 F.No 354/268/2009-TRU - refund allowed - appeal allowed - decided in favor of appellant.
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2017 (7) TMI 947 - CESTAT NEW DELHI
Business Auxiliary Services - activity of providing Multi Level Marketing by the appellant to its principal - penalty - Held that: - there was ambiguity in interpretation of the statutory definition of Business Auxiliary Service, we are of the view that the demand for extended period of limitation cannot be sustained. There is no sustainable ground for invoking fraud, misstatement etc., on the part of the appellant for defrauding the Government Revenue - considering the fact that the appellant has not involved in the fraudulent activities concerning suppression fraud etc, we are of the view that the penalty imposed under Section 77 & 78 ibid can be set aside by invoking Section 80 in the interest of justice.
We remand the matter back to the original authority for quantification of service tax liability payable by the appellant within the normal period of limitation - appeal allowed by way of remand.
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2017 (7) TMI 946 - CESTAT NEW DELHI
Valuation - abatement in the value of taxable service - N/N. 1/2006-ST dated 01.03.2006 - Held that: - the assessee-Appellants have reversed the entire disputed input service credit which acted as a bar for their claim of abatement under Notification No.01/2006-ST. We also note that such reversal, even later, will satisfy the condition of the Notification - It is also held in various decisions of the Tribunal that subsequent reversal of credit will remove the bar in availing such exemptions.
Valuation - inclusion of free supplied material by the recipient of service in the valuation of taxable service - Held that: - similar issue decided in the case of Bhayana Builders Pvt. Ltd. [2013 (9) TMI 294 - CESTAT NEW DELHI (LB)] wherein the Larger Bench of the Tribunal held that the items supplied free of cost by the recipient of service have no relevance to consider the gross valuation of the taxable service for the purpose of N/N. 01/2006-ST.
Appeal allowed - decided in favor of appellant.
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2017 (7) TMI 945 - CESTAT BANGALORE
Refund of service tax - unjust enrichment - Section 11B(2) of Central Excise Act 1944 - denial on the ground of non-production of evidence to establish that the burden of tax payment has not been passed on to the Customer - Held that: - The learned Commissioner (Appeals) has rightly held that the principles of unjust enrichment is not applicable in the present case and further I also find that the adjudicating authority while crediting the refund claim to the Consumer Welfare Fund has travelled beyond the order of the Tribunal - there is no infirmity in the findings of the impugned order which needs to be interfered with - appeal dismissed - decided against Revenue.
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