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Service Tax - Case Laws
Showing 81 to 100 of 185 Records
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2017 (7) TMI 687 - CESTAT HYDERABAD
Works contract service - Erection, Commissioning or Installation service - bidding for projects relating to various works in different States - the appellant was required to perform and undertake “works” of designing, supplying, fabrication, inspection, testing, installation and commissioning of pressure shaft liners otherwise called ‘steel liners/penstocks’ forming part of the respective projects contracted upon by the main contractors - department has sought to bring the impugned activity into the fold of Erection, Commissioning or Installation service (ECIS), for the period January 2005 to March 2010 and under Works Contract Service (WCS), from April 2010 to March 2012.
Held that: - It is not disputed that assessee was functioning as a sub-contractor to main contractors for hydro-electric projects in Himachal Pradesh and Maharashtra. Assessee was required to perform and undertake activity of Installation and Commissioning of Pressure shaft liners also called “steel liners/penstocks”. As the dispute is around, the taxability or otherwise of this particular activity done by the assessee, we proceed to examine the same. Towards this end, it would be useful to understand the nature and scope of the said activity - This activity is performed within the excavated tunnel. The tunnel is formed and complete only after the steel liners are put in place and the space between liner and rock is filled with concrete and pressurised cement grout. It is also not disputed that these tunnels have been made in relation to hydro-electric projects as underground passages for conveyance of water. Thus, there is no doubt that the activity of fabricating penstock/steel liners are essential for the completion of tunnels.
The work has been performed by the assessee on specific sub contract agreements for specific works detailed therein, the nature of work cannot, but, be otherwise than “Works Contract” and definitely not under “ECIS” as perceived by the department for the period upto March 2010. The nature and scope of the activity performed by the assessee also answers to the scope of works contract defined in Section 65 (zzzza) of Finance Act, 1994 for fabrication and installation work in respect of tunnel for transport of water from the Dam projects - Once it is clear that the impugned activity comes within the ambit of “works contract”, the same would also be taxable only w.e.f. 01.06.2007, when the said service was brought into the fold of service tax. The attempt by the department to categorise the very same activity for an earlier period under ECIS cannot then sustain.
We find that the impugned activity of the assessee was nothing but “works contract service” in respect of tunnels/dams. We further find that since the works contract was in respect of tunnels for dams/power projects, the same would then be excluded from taxability thereunder in view of the exclusion in Section 65(105)(zzzza) of Finance Act, 1994 - demand cannot sustain - appeal allowed.
Refund claim - claim on the basis that the activity does not amount to providing of taxable service as ECIS - Held that: - as there can be no taxability on the impugned activity during the period of dispute, the said amount would be refundable only for limited purpose of ascertaining whether the claim is hit by unjust enrichment or otherwise, which aspect has not been considered in the impugned order, we remand the matter to the original authority - matter on remand.
Appeal allowed - part matter on remand - decided in favor of appellant.
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2017 (7) TMI 686 - CESTAT HYDERABAD
Air travel agency service - short payment of tax - demand - Held that: - the Revenue authorities may not be aware that the respondent is not discharging the service tax liability from July 2001 to March 2005 in the absence of any returns filed by the respondent. It is on record that the respondent had not filed any returns for the period July 1997 to June 2001 as also for subsequent period - In the absence of any returns filed with the Revenue authorities, Revenue authorities will not be able to ascertain whether tax liability is correctly discharged or otherwise, and hence in our view the show-cause notice dt. 08/12/2005 is correctly invoking the extended period for demand of tax.
The second show-cause notice dt. 08/12/2005 is issued for the period subsequent to the period which was in question in show-cause notice dt. 08/10/2002. It transpires from record that there is no overlapping of the demand in order to claim the relief by the respondent.
Impugned order set aside - appeal allowed - decided in favor of appellant.
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2017 (7) TMI 685 - CESTAT HYDERABAD
Renting of immovable property - time limitation - Held that: - there cannot be any dispute on taxability on this score when the said activity is not being shown to be covered by any exclusion or exemption from service tax thereof. We therefore hold that this activity will definitely be leviable to service tax but only for the normal period of limitation - However for the periods beyond the period of limitation in all these cases, notwithstanding the protestations of the learned ARs to the contrary, we are of the opinion that appellants being statutory bodies, they cannot be held to have suppressed facts with any intent to evade payment of tax. - the demand of service tax amounts will sustain in respect of renting of immovable property, in respect of all these appeals but only for the normal period of limitation, along with interest liability thereof as applicable.
Valuation - reimbursement of expenses - Sale of space or time for advertisement by municipalities / corporations - the appellants have contended that the activity sought to be taxed is only relating to collection of tax on advertisements and not on sale of space and time for advertisement per se - Held that: - if the amounts received by the appellants are only towards advertisement tax collected by them under statutory powers bestowed on them, that activity cannot be brought under ambit of service tax and the taxable value thereof cannot be taxed as sale of space and time for advertising service. This is a fundamental principal of taxation, which has been reiterated by the CBEC in the Circular No.192/02/20016 wherein at Sl.No.3, the Board clarifies that “taxes, cesses or duties levied are not consideration for any particular service as such and hence not leviable to service tax” - in the absence of any detailed facts and records before us, this particular aspect will have to be checked up and confirmed only at the ground level. Accordingly, for the limited purpose of establishing the nature and scope and the amounts received in these cases, whether they pertain only to collection of tax on advertisements or whether they relate to or also include amounts received for sale of space for advertisement, the matter is being remanded to the original authority for de novo consideration.
Appeal allowed in part - part matter on remand.
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2017 (7) TMI 684 - CESTAT NEW DELHI
Refund claim - N/N. 41/2007-ST dated 06.10.2007 - denial on the ground that Goods exported under claim for duty drawback, hence condition 1(e) of Notification No.41/2007-ST not satisfied - Held that: - in case of availment of draw back on specified services, the refund benefit contained in the Notification dated 06.10.2007 shall not be available to the claimant. However, the said condition was deleted by the Central Govt. vide N/N. 33/2008 dated 07.12.2008. Since, in the original Notification dated 06.10.2007, it has been clearly provided that availment draw back of service tax paid on specified services should not be considered for refund under the said Notification and in absence of any ambiguity regarding interpretation of the said phrase contained in the Notification dated 06.10.2007, it cannot be said that the amending Notification dated 07.12.2008 will have the retrospective effect and should be applicable for the refund claims filed prior to 07.12.2008. Therefore, the refund claim filed for the period 01.10.2008 to 06.12.2008 will not merit consideration.
Refund claim - THC Charges, bill of lading charges, original haulage charges, repo charges etc. - denial on the ground that these are not covered under Port Services as the service providers are registered under different category and proof of deposition of tax under port services not produced - Held that: - it is an admitted fact on record that said services were used/ utilized by the appellant within the port of export for exportation of the goods. Thus, irrespective of the classification of service made by the service provider, the same should be considered as port service for the purpose of benefit of refund under Notification dated 06.10.2007 - the appellant should be eligible for refund of such charges paid by it for exportation of the goods.
Refund claim - denial on the ground of non-submission of proper invoice, proof of payment of service tax and GTA services and accredition certificate issued by the competent agency - Held that: - we are remanding the matter to the original authority for verification of the documents to be produced by the appellant.
Appeal allowed in part and part matter on remand.
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2017 (7) TMI 683 - CESTAT HYDERABAD
CENVAT credit - maintenance of separate records in case of taxable as well as exempt goods - the appellants had availed credit of service tax paid on Telephone Bills, Mobile Bills, Motor car servicing bills etc., even though the said documents were in the name of individual by name Shri S. Venkataraman, Partner of the appellant company - the adjudicating authority rejected the credit on this aspect since the appellants were failed to submit any proof to the extent that these phones were used for the services for which they claimed - Held that: - the appellants are engaged in the activity of sale of Motor Vehicles which does not come under purview of Service Tax Act. The demand period involved is from October 2007 to March 2011. Prior to the issuance of the N/N. 10/2008-CE (NT) dated 01.03.2008, the service provider was entitled to utilize upto 20% of the common input service credit available towards the tax payable on the output services where the service provider was engaged in providing both taxable and non-taxable services. From 01.04.2008, the appellants are required to opt for either of the options envisaged in Rule 6 (3) of the CENVAT Credit Rules, 2004. As seen from the record, I find that the appellants continued to utilize the credit by calculating 20% of the tax payable irrespective of the factor whether the same is available or not. Since the appellants are engaged in both taxable and non-taxable activity and are not maintaining separate input accounts, the appellants are required to follow sub-rule 3 of Rule 6 of CENVAT Credit Rules 2004.
As the appellants have failed to exercise any of the options given under the provisions of law, I cannot extend any benefit to them at this juncture. I also find that the appellants failed to produce sufficient/substantial evidence in support of their contention that the said phones were used exclusively for taxable services viz., business promotion of service of customers as well as sale of vehicles through financiers.
Appeal dismissed - decided against appellant.
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2017 (7) TMI 682 - CESTAT MUMBAI
Quantum of penalty - reverse charge - Business Auxiliary Services - It is the contention of Revenue that the computation of the amount due for 2006-07 is incorrect arising from improper appreciation of the facts in the SCN - Held that: - We do not find any evidence on record to enable us to decide the veracity of this claim of Revenue. However, we observe that the confirmed demand reflects the tax computed for 2005-06 which is not consistent with the findings in the impugned order. It is therefore necessary that the value of taxable services would need to be determined afresh - matter is remanded back to the original authority for the limited purpose of computation of the tax and the interest and for imposing penalties thereon - appeal allowed by way of emand.
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2017 (7) TMI 681 - CESTAT NEW DELHI
Classification of service - Computerized Reservation System (CRS) service - incentives provided to the appellant for increase in usage of their CRS - whether fall under Business Auxiliary Services or not? - extended period of limitation - penalty - Held that: - t the issue regarding classification of CRS service under the category of Business Auxiliary Service has already been decided - the issue regarding levy of service tax on CRS was not free from doubt and accordingly, suppression of facts with intent to evade payment of service tax cannot be levied against the appellant. Therefore, the extended period of limitation invoked in this case cannot be sustained. The demand of service tax liability should be confined to the normal period - Since, there is no suppression of facts, penalty imposed under Section 78 on the appellant cannot be sustained - appeal allowed - decided partly in favor of appellant.
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2017 (7) TMI 652 - DELHI HIGH COURT
Refund claim - time limitation - duty paid under protest - reverse charge - whether time limitation of 1 year is applicable to duty paid under protest? - Held that: - the first appellate authority was correct in coming to the conclusion that service tax liability arises on the respondents herein only, if the said amounts were paid post 18/04/2006 - reliance place on the judgment of the Hon’ble Bombay High Court in the case of Indian National Shipowners Assocaition [2009 (3) TMI 29 - BOMBAY HIGH COURT] is correct as this judgment of the Hon’ble High Court of Bombay has been upheld by the apex court and based upon such decision, Board has also issued circular No.276/8/2009-CX.8A dt. 26/09/2011 stating that service tax liability for the payments made to an overseas service provider will arise from 18/04/2006 only - refund allowed - appeal dismissed - decided against Revenue.
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2017 (7) TMI 651 - ALLAHABAD HIGH COURT
Agency Commission - Whether the Customs Excise & Service Tax Appellate Tribunal, Allahabad is correct in setting aside the Order in Original dated 30/10/2009 without giving any finding on service tax liability of the respondent on Agency Commission from Maruti Udyog Ltd., DGS&D and nonregistration of the respondent's unit No.1 i.e. 21 Vidhan Sabha Marg, Lucknow? - Held that: - we do not find any discussion on this aspect at all and respondent also could not show anything where this aspect has been dealt with - we are remanding the matter to Tribunal to consider this aspect and findings of Commissioner of Central Excise - appeal allowed by way of remand.
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2017 (7) TMI 650 - CESTAT MUMBAI
Benefit of N/N. 9/2004-ST dt. 9.7.2004 - denial on the ground that appellant have availed CENVAT credit - Held that: - there is no allegation that the appellant have violated the condition of notification No. 9/04-ST. Moreover in the annexure to show cause notice which quantified the differential short paid service tax clearly shows that the show cause notice itself extended, the abatement of 60% as available under the Notification No.9/2004-ST thereafter it is not open for the adjudicating authority as well as the Commissioner (Appeals) to visit to the issue of eligibility of the abatement provided under Notification No.9/04-ST. The entire finding which is based on the said notification is baseless and not flowing from the show cause notice.
The impugned order is set aside and matter remanded to the adjudicating authority to verify the correct rate of service tax applicable on the date of provision of service and accordingly re-quantify the service tax liability if any arise - appeal allowed by way of remand.
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2017 (7) TMI 649 - CESTAT CHENNAI
Cargo Handling Agent Service - Held that: - provisions of sub-section (23) of section 65 of the Finance Act, 1994, Cargo Handling Service means loading, unloading, packing or un-packing of cargo and includes Cargo Handling Services provided for freight in special containers or for non-containerized freight, services provided by a container freight terminal or any other freight terminal, for all modes of transport and Cargo Handling Service incidental to freight, but does not include handling of export cargo or passenger baggage or mere transportation of goods - From the definition of Cargo Handling Service , what emerges is that mere transportation of cargo is excluded from that definition. Every activity of service of transportation of goods will surely include some manner of loading and unloading of the goods. The question to be asked is whether such loading/unloading is the primary activity involved in the services carried out. From the facts of the matter at hand, we find that the answer is in the negative.
Just because appellant carried out ancillary activities of loading, unloading etc., which is not the essential character of the activity contracted to him but only ancillary to the main work of transportation of break-bulk cargo, it would not be just and proper to bring such activity within the fold of "Cargo Handling Service". The essential character of the activity carried out is only transportation. In view of Board's clarification, we have no doubt that such activity cannot then fall under the ambit of cargo handling service.
Appeal allowed - decided in favor of appellant.
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2017 (7) TMI 648 - CESTAT, CHANDIGARH
Maintainability of appeal - Held that: - the consolidated appeal was filed initially by the Revenue and as today pointed out by them, they have filed three separate appeals against the impugned order, therefore the present appeal filed by the Revenue is not maintainable - appeal dismissed being not maintainable.
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2017 (7) TMI 647 - CESTAT HYDERABAD
Refund claim - denial on account of nexus of the services received and consumed for providing the output services - Held that: - the impugned order is correct and following the various case laws which have been cited in respect of the similar services and that also which are used for export of services. In the case in hand, there is no dispute that the respondent is an exporter of ITSS and BAS - refund allowed - appeal dismissed - decided against Revenue.
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2017 (7) TMI 646 - CESTAT MUMBAI
Refund claim - time limitation - whether the refund of service tax in terms of N/N. 52/2001-ST dated 30-12-2011 in respect of service tax paid on the input service and used for export of service is admissible when it is filed beyond the limitation of one year as provided under said notification? - Held that: - As per the statutory time limit, the refund must be filed within one year from the date of export. There is no discretion provided for any authority to condon the delay. In the present case undisputedly refund claim was filed after one year from the date of exports - refund filed by the appellant is clearly time bar and the same cannot be entertained - appeal dismissed - decided against appellant.
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2017 (7) TMI 645 - CESTAT MUMBAI
Intellectual Property Service - Royalty paid to holding company in USA - whether royalty paid would be classified under 'Intellectual Property Service' or otherwise? - Held that: - in appellant's own case Fluent India Pvt. Ltd. Versus Commissioner of Central Excise, Pune-I [2016 (1) TMI 442 - CESTAT MUMBAI], the Co-ordinate bench of this Tribunal has decided the issue in hand wherein it was held that The appellant is merely distributing, marketing and supporting set of computer programme known as FI software. There is absolutely no indication of any transfer of intellectual property right on a plain reading of the Agreement. Neither do we find any hidden or deeper meaning in the Agreement which would indicate transfer of intellectual property right.
The royalty paid by the appellant to their holding company in USA towards the that receipt and use of software does does not fall under the 'Intellectual Property Service' - the demand raised by the Revenue was set aside - appeal allowed - decided in favor of appellant.
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2017 (7) TMI 644 - CESTAT MUMBAI
CENVAT credit - rent-a-cab service - abatement - Whether the CENVAT Credit availed by the appellant in respect of the services received prior to 1.3.2006 is admissible when the same was taken after 1.3.2006 and whether consequentially the appellant is entitled for the abatement provided under N/N. 1/2006-ST in respect of their services of rent a cab? - Held that: - the notification shall not apply only in a case where the cenvat credit of service tax was availed in respect of that input services which was used for providing taxable service on which the abatement was claimed in terms of N/N. 1/06-ST - even though the credit was availed on or after 1.3.2006 but it pertains to the period prior to 1.3.2006. The services were used before 1.3.2006 for output service which was provided before 1.3.2006. The benefit of abatement under N/N. 1/2006-ST available on the output service provided on or after 1.3.2006 cannot be disputed.
The factual aspect of receipt of input service prior to 1.3.2000 and used in the services provided before 1.3.2006 was not verified properly by the lower authority, therefore the matter needs to be remanded - appeal allowed by way of remand.
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2017 (7) TMI 643 - CESTAT MUMBAI
Whether services provided by overseas branches of the respondent has to be included in the total turnover, particularly when the adjudicating authority has not included the same in the export turnover for the purpose of refund under Rule 5 of CCR, 2004 read with N/N. 5/2006-CE(N.T.) dated 14-3-2006?
Held that: - the basis of not inclusion of service value of service provided by the branch offices is that the same was not provided from India, if that is so, then the same is not includible in the total turnover for the reason that only turnover which is pertains to the activity carried out by the respondent from India will only be taken as total turnover - The Revenue cannot apply two yardstick that for the purpose of export turnover by the respondent from India and for the purpose of total turnover, the services deemed to be provide by the respondent therefore it is not permissible.
Once the revenue itself has admitted that the service provided from the branch office of overseas is not includible in the export turnover, the same principle has to be applied with regard to total turnover - the value of services provided by the branch offices cannot be added in the total turnover - appeal allowed - decided in favor of assessee.
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2017 (7) TMI 603 - MADRAS HIGH COURT
Levy of Penalty - bonafide belief - reverse charge - lead arrangers - Despite the fact that the assessee had already paid the requisite service tax, the Revenue issued a Show Cause Notice dated 27.12.2007 (SCN). Via the said SCN, the Revenue proposed, to not only appropriate the service tax, which included the educational cess already deposited by the assessee, but also called upon the assessee to show cause as to why interest ought not to be levied under Section 75 of the Finance Act, coupled with penalties under Section 76 for failure to pay service tax and under Section 78 for suppressing the factum of receipt of taxable services from a non-resident service provider.
Held that: - upon a bare perusal of Section 80 (i), it opens with the non-obstante clause. Accordingly, it terms of the said Section an assessee can plead for waiver of imposition of penalties levied under Sections 76, 77 and 78 of the Act, if it is able to demonstrate that a "reasonable cause" obtained for non-payment of service tax.
The assessee had paid service tax on a reverse charge mechanism basis, as soon as it received a communication dated 15.03.2007. The assessee did not wait for issuance of the SCN. Not only did the assessee pay the service tax, but it also paid interest, albeit, after the demand was confirmed. The assessee, it appears, therefore, verily believed that since, arrangement fee had been paid to ICICI Bank, which is an entity incorporated in India, it is that entity which would be required to pay service tax. The assessee continued to hold this belief and, as a matter of fact took a specific ground, in that behalf, even in the appeal filed with the Tribunal - merely because service tax was paid prior to SCN, therefore, penalty ought to be waived. What is required to be looked at is, the cumulative set of facts obtaining in each case, and then, assessing as to whether non-payment of service tax was a conscious and/or deliberate act of wrong doing and/or deception. Our sense of the matter is that, it was not, and, therefore, the conclusion reached by the Tribunal, in our view, is correct.
Since, it is a civil obligation emanating from a statutory offence, imposition of penalty would follow, if, once it is established that the non-payment of tax was a result of a conscious and/or deliberate act of deception or wrong doing.
Tribunal has rightly, invoked the provisions of Section 80 of the Finance Act. - Appeal dismissed - decided in favor of assessee.
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2017 (7) TMI 602 - BOMBAY HIGH COURT
Service of notice - Section 37(C) of the Central Excise Act - natural justice - Held that: - In the present case, it is a matter of record that thrice, the notice of hearing were issued to the petitioner i.e. on 30th October, 2014, 12th November, 2014 and 14th September, 2015. However, the said notices have been issued on the old address of the petitioner, whereas prior to the said notices of hearing being issued to the petitioner, the petitioner on 6th January, 2014 had intimated the respondent Authority of its address being changed and had also intimated the new address. It appears that the notices were not issued on the new address and all the notices issued to the petitioner on the old address were returned with an endorsement “left”. Naturally, there was no service to the petitioner of the said notices.
The petitioner did show his bona fide by undertaking to deposit ₹ 25 lakhs within three months without prejudice to his rights - The deposit of ₹ 25 lakhs as undertaken is condition precedent.
Petition allowed - matter restored before lower authorities - decided partly in favor of petitioner.
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2017 (7) TMI 601 - CESTAT CHANDIGARH
Condonation of delay - Section 35B of Central Excise Act, 1944 read with Rule 8 and Rule 15 of CESTAT (Procedure) Rules, 1982 - Held that: - if the order passed by Commissioner (Appeals) is not legal or proper, then the Committee of Commissioners is required to examine such order and may have the powers to direct an officer to file appeal before the Tribunal. Admittedly, in this case, in compliance with the provisions of Section 35B of Central Excise Act, 1944, read with Section 86 (2A) of the Finance Act, 1994, the committee of Commissioners authorised the Assistant Commissioner, Service tax, Division-III, Gurgaon.
It is an admitted fact that the applications are not signed by the person authorised by the Committee of Commissioners as per section 86(2A) of the Finance Act, 1994 read with Section 35B (2) of the Central Excise Act, 1944 - applications for condonation of delay are not maintainable - appeal dismissed - decided against Revenue.
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