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Service Tax - Case Laws
Showing 21 to 40 of 291 Records
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2017 (9) TMI 1556 - CESTAT KOLKATA
CENVAT credit - taxable services as well as non-taxable services - non-maintenance of separate set of books - Held that: - reliance placed in the case of M/s. Aster Pvt. Ltd. Versus CC&CE, Hyderabad [2016 (6) TMI 866 - CESTAT HYDERABAD], where it was held that Rule 6(3A), as seen expressly stated is nothing but a procedure contemplated for application of Rule 6(3). Therefore, the argument of the Revenue that the requirement to intimate the department about the option exercised, is mandatory and that on failure, the appellant has no other option but to accept and comply Rule 6(3)(i) and make payment of 5% / 10% of sale price of exempted goods / value of exempted services is not acceptable or convincing - appeal allowed - decided in favor of appellant.
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2017 (9) TMI 1555 - CESTAT KOLKATA
Classification of services - Consulting engineer service or works contract service - C.B.E.C. Circular No.58/7/2003-S.T. dt. 20.05.2003 - Held that: - On perusal of this circular, it is seen that the said circular pertains to using a wrong Accounting Code for payment of Service Tax clarification. Since the dispute does not pertain to wrong Accounting Code, the circular is not applicable - in this case nature of contract is admittedly a works contract as is evident from the nature of the contract enclosed with the show cause notice and as has been mentioned in the appeal in the statement of facts. However, where service component is not separately mentioned, the composite works contract cannot be divisible prior to 01.06.2007.
Scope of SCN - the allegation in the show cause notice is to classify the impugned service as ‘Consulting Engineer Service’ - Held that: - the contract in this case is a works contract and hence the service provided is works contract service. On that ground too, the show cause notice is not sustainable.
Time limitation - Held that: - the issue of indivisibility of the works contract prior to 01.06.2007 involved question of interpretation of law - extended period not invoked.
Appeal dismissed - decided against Revenue.
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2017 (9) TMI 1498 - CESTAT ALLAHABAD
Scope of SCN - Rent-A-Cab Scheme Operator’s Service - Held that: - the SCN raised the demand of ₹ 42,21,400/- under ‘Rent-A-Cab Scheme Operator’s Service’. The original authority confirmed the demand under ‘Rent-A-Cab Scheme Operator’s Service’ and Learned Commissioner (Appeals) has held that out of the said demand ₹ 11,28,095/- was liable to be upheld under Transport of Goods by road - such finding that the appellant was required to pay service tax of ₹ 11,28,095/- on transport of goods by road is beyond the proposal in the SCN - impugned order set aside - appeal allowed - decided in favor of appellant.
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2017 (9) TMI 1497 - CESTAT CHENNAI
Business Auxiliary Services - commission agent service - demand for the period 1.7.2003 to 8.7.2004 - Held that: - When the activity of the appellant is to identify the customer through their web portal and receive the sale proceeds on behalf of the merchant and pay the same to the merchant, it does have same bearing to the definition of commission agent. The appellant cannot be found fault with if they believed bonafidely that they would fall within the definition - the demand for the period 1.7.2003 to 8.7.2004 is unjustified and requires to be set aside - demand for the later period upheld.
Penalty u/s 78 - Held that: - appellant has made payment of service tax along with interest even before issuance of SCN as well as of the fact that the issue was an interpretational one and during the relevant period there was much confusion as to whether the said activity would fall within the Business Auxiliary Service or under internet advertisement services, which was introduced after 1.5.2006, the penalty imposed u/s 78 is unjustified.
Appeal allowed - decided partly in favor of appellant.
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2017 (9) TMI 1496 - CESTAT BANGALORE
Power of remand - Refund claim - unjust enrichment - Board's Circular No.120/1/2010 dated 19.01.2010 - Held that: - Commissioner (A) has the power of remand under section 985(4) of the Finance Act 94 - reliance placed in the case of COMMISSIONER OF SERVICE TAX, DELHI Versus WORLD VISION [2009 (11) TMI 452 - CESTAT, NEW DELHI], where it was held that Sub section (4) of Section 85 corresponds to Excise section 35A(3) language of two provisions different. Section 85(5) is only about procedural aspects and not to be interpreted to restrict powers of Commissioner (Appeals) under section 85(4) - appeal dismissed - decided against Revenue.
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2017 (9) TMI 1495 - CESTAT HYDERABAD
Classification of services - GTA services - transportation charges - appellant is engaged in collecting bio-medical waste from these hospitals and dumping or shredding them as the case may be for which purposes they collect charges - whether this service would be taxable under GTA service? - Held that: - appellant is not providing any GTA services, but he is in the activity of disposing the bio-medical waste - on a specific query from the Bench, it was clarified that they are not issuing any consignment note of whatsoever in nature. The primary requirement for taxing under GTA services is that there should have been issuance of a consignment note by any name, in this case nothing has been brought on record to take a view that the services can be classified under GTA - appeal allowed - decided in favor of appellant.
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2017 (9) TMI 1494 - CESTAT HYDERABAD
Jurisdiction - Whether the appellant would fall under the jurisdiction of Guntur Commissionerate or Hyderabad Commissionerate for service tax matters? - Held that: - Appellant may well have taken registration for their Miryalaguda set up. However, it is not the case that they had taken centralized registration at Miryalaguda for all their activities in various places, including those at Krishnapuram Limestone Mines, or for that matter, at Miryalaguda for both their offices including the one at Jaggaiahpet - proceedings are not hit by jurisdiction.
Classification of service - appellants herein, were engaged in transportation, excavation and loading of lime stone in the mines belonging to cement factories - cargo handling services or mining services? - Held that: - the appellant though involved in loading and unloading activities, nonetheless these are in relation to the mining activity in the Krishnapuram Mines of the service recipient - In the case of CCE&C, Bhubaneswar vs. B.K. Thakkar [2007 (10) TMI 147 - CESTAT, KOLKATA], it was held that activities of excavation, transportation and feeding of non ores to crushing plants for processing are primarily in the nature of mining and not covered under cargo handling services - the services rendered by the appellant cannot be brought under the fold of cargo handling services.
Appeal allowed - decided in favor of appellant.
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2017 (9) TMI 1493 - CESTAT HYDERABAD
Export of services or not? - appellant was rendering Technical Knowhow agreement with a Nigerian Firm - time limitation - Held that: - It can be seen from the records, that letter dated 23.07.2010 is only informing the department as to receipt of Technical Knowhow for the financial year 2008-2009 and is absolutely silent on the services rendered during the period in question. It is also on record that the appellant being a service provider, should have indicated the said services rendered by them in the half yearly returns which it seems is not done so - on limitation, the appeal fails.
Whether the demand arising from transactions not treatable as export on the solitary ground that the consideration was not received in foreign currency; is legally sustainable? - Held that: - Admittedly, the receipt in foreign currency is a condition prevalent in the law at all times, in order to consider the transaction as an export transaction - Since the appellant contends that the figure adopted is merely a provision for accounting purpose, and does not represent the actual receipt; and also that it continues to be shown as receivable in the final accounts clearly affects the levy. The impugned order admittedly failed to address the appellant s contentions on this aspect inter alia; and this leads to the inference that the principles of natural justice were indeed violated. The ends of justice would therefore be met if the matter is remitted to the lower authority to examine the facts against the corresponding legal provisions.
Appeal allowed by way of remand.
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2017 (9) TMI 1492 - CESTAT HYDERABAD
Refund of service tax paid, which was not required to be paid - rejection on the ground of time limitation - Held that: - Since it is undisputed that appellant is not required to discharge the service tax liability under the reverse charge mechanism on these two services by virtue of N/N. 25/2012, cannot be equated as payment of duty/service tax liability, lest, it should be put through rigorous of provisions of Section 11B of the CEA, 1944 - provisions of Section 11B will not get attracted to payments made by the appellants - refund to be allowed - appeal allowed - decided in favor of appellant.
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2017 (9) TMI 1491 - CESTAT BANGALORE
Levy of service tax - services provided by an authorized person to Member of a recognized association - whether the service is classifiable under Business Auxiliary Services? - Held that: - Having established that the appellant renders Business Auxiliary Services to M/s. Geojit BNP Paribas Financial Services and M/s. Geojit Comtrade Ltd. with the former being privileged for special treatment and exclusion, thereby, from taxability owing to specific provisions, and it being clear that sub-brokers in the commodities trade not enjoy the same privilege, the services rendered by appellant to M/s. Geojit Comtrade Ltd. is liable to service tax - demand upheld - appeal dismissed - decided against appellant.
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2017 (9) TMI 1443 - DELHI HIGH COURT
Classification of service - Works Contract service - composite contract - Department issued a SCN dated 27th May, 2011 to the Assessee stating that the aforementioned construction projects were entirely commercial in nature and were amenable to service tax under the category of Commercial and Industrial Construction Service - Whether the CESTAT was justified in remanding the matter to the Adjudicating Authority on the question whether the contract in question was a composite works contract and whether it was liable for service tax as such? - Held that: - On a plain reading of the SCN, it is apparent that it was never disputed by the Department that what was undertaken by the Appellant was a composite contract of construction which involved labour and service elements. The grant of rebate to the Assessee as noted in the SCN was itself an acknowledgment of this. If that was never in issue, the question of remanding the matter to the Adjudicating Authority for verifying that fact did not arise - The CESTAT had to examine if the nature of the contracts executed by it was such that would be covered by the decision of the Supreme Court in Commissioner of Central Excise, Kerala v. Larsen & Toubro Ltd. [2015 (8) TMI 749 - SUPREME COURT].
The appeal of the Department is restored to the file of the CESTAT.
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2017 (9) TMI 1442 - CESTAT KOLKATA
CENVAT credit - GTA service - cargo & courier service - club & hotel membership service - Time limitation - Held that: - the earlier show-cause notice dated 24.09.2009 was withdrawn by the Revenue and therefore, the said notice is non-est. Hence, there is no force in the submission of the ld.Advocate on limitation.
The appellants contested the demand on merits also. It is seen that all these issues on merit were not examined by the lower authorities in proper manner. It is appropriate that the matter should be remanded to the Adjudicating Authority to decide afresh.
Appeal allowed by way of remand.
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2017 (9) TMI 1441 - CESTAT ALLAHABAD
Refund of Revenue Deposit - time limitation - whether the appellant who had deposited the tax, as their claim for being exempt under N/N.74/93-CE dated 28/02/1993, was not accepted by the Department and subsequently when the matter came to be settled by the Hon'ble Supreme Court and the appellant applied for refund, whether the same has been rightly rejected on the ground of limitation?
Held that: - the appellant have deposited the duty under protest - in view of the exemption notification being held applicable in favor of the appellant, subsequently by Hon’ble Supreme Court order, the amount of duty deposited acquired the character of revenue deposit - there is no limitation for refund of Revenue deposit - refund allowed - appeal allowed - decided in favor of appellant.
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2017 (9) TMI 1440 - CESTAT AHMEDABAD
Taxability - reimbursable expenditure - Held that: - the appellant did not produce sufficient evidences before the Adjudicating Authority in order to indicate that the subject amount on which the Dept. issued the demand of Service Tax is actually under the category of 'reimbursable expenses'. When it is so, the subject matter is remanded back to the Original Adjudicating Authority who shall decide if the subject amount is under the category of reimbursable expenses or not - matter on remand.
Demand of Service Tax on the amount of TDS - Held that: - The appellant, in this regard, pleads that this demand is time barred and therefore, there is no liability of payment of Service Tax against them - this issue also needs to be decided afresh by the Original Adjudicating Authority, to whom the matter is being remanded.
Appeal allowed by way of remand.
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2017 (9) TMI 1439 - CESTAT CHENNAI
Reverse charge mechanism - availing the services of Foreign Commission Agent to locate the buyers - penalty - Held that: - The payment of service tax on reverse charge basis during the relevant period was under cloud and the matter was not clear from doubts. Inasmuch as, the appellants have reflected the receipts of said services in their records, required to be maintained under law, it has to be held that there was no malafide on their part - extending the benefit of section 80 of the Finance Act, 1994, the penalty imposed is set aside - decided in favor of appellant.
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2017 (9) TMI 1438 - CESTAT KOLKATA
Penalty - payment of tax with interest on being pointed out - Reverse charge mechanism - import of service under the category of consulting Engineer - Held that: - the appellant on the basis of his own ascertainment or on the basis of the tax ascertained by the Central Excise Officers, had paid the tax with interest and informed the department by letter dated 25.11.2009. There is no material available on record of allegation of fraud, collusion etc. - the SCN issued after one Year is contrary to the provisions of law and the imposition of penalties is not justified - appeal allowed - decided in favor of appellant.
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2017 (9) TMI 1437 - CESTAT KOLKATA
Non-payment of tax - It is the case of the Revenue that the appellant collected the Service Tax from the customers, but failed to deposit the same with the department - overlapping of amount - Held that: - Apparently, it is seen that the period of dispute in the second appeal is covered in the first appeal. Further, the appellant requested for re-quantification of the demand as per reconciliation statement - the appellant should be given an opportunity to place the reconciliation statement in the interest of justice - appeal allowed by way of remand.
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2017 (9) TMI 1436 - CESTAT KOLKATA
Refund claim - GTA service - denial on the ground that there is no linkage like shipping bill No., bill of lading No., export invoice No., etc. to show that the services are actually used for the goods claimed to have been exported under the specific shipping Bill - The Department's contention is that, the charges have not been incurred close to the date of shipment, and that there is no one to one co-relation with the goods exported - Held that: - It is well-settled that in the Cenvat Scheme there is no requirement to establish a one to one relation between the goods/service and goods exported from amongst the mass of goods. It is noted that the definition of port service is very wide - CBEC Circular DOF No.334/1/2010-TRU dated 26.02.2010, gave clarity in respect of alteration and expansion in the scope of existing services and other significant changes in the Finance Act, 1994 in respect of services provided at the port. In order to remove difficulties, it is clarified that the definition of port service as amended, "that all services provided entirely within the port premises would fall under these services". Thus, any service rendered within the port premises could be treated as port service - Further CBEC Circular No.120/01/2010-ST dated 19.01.2010, in respect of refund of Cenvat Credit of Service Tax to exporter, it is clarified that for the eligibility of refund, the nexus between inputs or input service and the final goods/services has to be loser. There is no requirement of one to one co-relation between inputs and outputs.
As the benefit of C.B.E. & C. Circular dated 19-10-2010 and relied upon case laws were not available before the adjudicating authority, the matter is remanded back to the Adjudicating authority to decide the matter on the basis of chartered Accountant’s certificate to establish the co-relation required under N/N. 41/2007-S.T. - appeal allowed by way of remand.
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2017 (9) TMI 1386 - GUJARAT HIGH COURT
Commercial or Industrial Construction Service - service provided by the respondent in laying down long distance pipelines for transfer of drinking water in the State of Gujarat pursuant to a contract awarded by Gujarat Water Supply and Sewerage Board - levy of tax - Held that: - GWSSB discharged an important duty and responsibility of providing drinking water to the people, industries etc. The Board was constituted mainly to supply drinking water and maintenance of sewerage system. The usage charges recovered by the Board from Gram Panchayats, Nagar Palikas and Nagar Panchayats are at highly subsidized rates and therefore, cannot be considered as an industry in the sense that the said word is used in the definition of taxable entry. The Board was sustaining on the grants released by the State Government.
The pipelines constructed were for providing drinking water facilities to the people of the State through different Gram and Taluka Panchayats. Only a small portion of the water was provided to the industries at commercial rates - levy of tax set aside.
Appeal dismissed - decided against Revenue.
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2017 (9) TMI 1385 - BOMBAY HIGH COURT
Classification of services - “Financial Advisory Services” in respect of energy, banking, development, finance, transport and urban infrastructure, disinvestment and risk management - whether classified under the head Banking and other Financial Services or under the head Management Consultancy Service? - Held that: - the Financial Advisory Services undertaken by the Respondent have been introduced for the first time in “Banking and other Financial Services” with effect from 16th August 2002 - From the definition of Banking and other Financial Services, it is clear that Financial Advisory Services were included as a part of the said services.
Insofar as “Management Consultancy Services” are concerned these have at all times been under the Finance Act and chargeable to service tax. This would be the case even after the inclusion of Advisory and Auxiliary Financial Services under “Banking and other Financial Services” on 16th August 2002 - it is not open for the Appellant to take a contrary stand viz. that the Financial Advisory Services were falling under “Management Consultancy Services” prior to 16th August 2002. The Appellate Tribunal have also observed that the Board Circular dated 7th October 1998 categorically clarified that information and advisory services, if any, rendered by credit rating agency would not attract service tax.
The Appellate Tribunal has arrived at correct finding that the advisory services provided by the Respondent does not fall under category of “Management Consultancy Services” and is correctly classified under the “Banking and other Financial Services” - Appeal dismissed - decided against Revenue.
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