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Service Tax - Case Laws
Showing 1 to 20 of 181 Records
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2018 (1) TMI 1692 - CESTAT NEW DELHI
Works Contract - seeking time to get the RUDs and connected documents - Revenue prayed, as a last chance, an adjournment to make an attempt to get all the documents and agrees that the case can be taken for decision in the next hearing even if he could not produce the documents - HELD THAT:- Noting the prayer of the ld. AR, the case to 28.02.2018 is adjourned.
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2018 (1) TMI 1628 - CESTAT, NEW DELHI
Scope of agreements - memorandum of understanding was different - agreement for underwriting commission - HELD THAT:- In the instance case the main controversy is pertaining to the agreement between the service provider and service recipient. It is the allegation that in the memorandum of understanding, the scope has been enhanced and the new document has been given at the time of adjudication. The contention of the department is that both the agreements has different contents. When it is so, the impugned order is set aside and matter remanded to the original authority to verify the genuineness of the agreement and decided the issue denovo but by providing an opportunity of hearing to the respondent.
Appeal allowed by way of remand.
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2018 (1) TMI 1620 - CESTAT NEW DELHI
Levy of Service Tax - works contract - construction of furnaces, plants, cast house etc. - HELD THAT:- Hon’ble Supreme Court in the case of Commissioner of Central Excise, Kerala vs Larsen & Toubro Ltd., [2015 (8) TMI 749 - SUPREME COURT], has held that prior to June, 2007 the ‘Works Contract Services’ were not subjected to Service Tax.
The matter is remanded to the original authority to decide the issue de novo in the light of the law laid down by the Hon’ble Supreme Court in the case of Larsen & Toubro Ltd. - appeal allowed by way of remand.
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2018 (1) TMI 1583 - CESTAT ALLAHABAD
Erection, Commissioning & Installation Service - non-payment of service tax - extended period of limitation - HELD THAT:- The learned Commissioner have erred in holding that service tax is payable in spite of goods/material being used in execution of the contract for Indian Oil, supplied by the assessee-contractor and admittedly VAT-”works contract” tax have been paid. Accordingly, we find that the classification adopted in the impugned order-‟Erection, Commissioning and Installation Service‟ is not tenable and palpably wrong - thus, the service rendered by the appellant is classifiable under “Works Contract Service‟ as defined under Section 65(105)(zzzza).
Appeal allowed - decided in favor of appellant.
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2018 (1) TMI 1510 - CESTAT ALLAHABAD
Imposition of penalty for delay in filing of ST-3 return for 138 days - contravention to the provisions of Section 70 of the Act - HELD THAT:- The Appellants have bonafidely filed the half yearly ST-3 Return for the period 04/2012 to 09.2012. In the instant case, since the Appellants were not aware about the change of procedure for filing the quarterly return instead of half yearly and this being merely a procedural lapse, substantial justice cannot be denied.
Appeal allowed - decided in favor of appellant.
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2018 (1) TMI 1498 - CESTAT HYDERABAD
Classification of services - mining services or not - period July, 2006 to December, 2006 and January, 2007 to April, 2007 - It is the case of the appellant mining services during the relevant period but the contention of the Revenue is that the services would fall geological, geophysical activities of excavation, over-burden removal etc. - HELD THAT:- On specific query from the Bench, whether there was any stay by the Apex Court on these two matters against order passed by the Tribunal, it is informed by the Learned Counsel that there is no stay. Since there is no stay against the order passed by the Tribunal in the appellant's own case on an identical issue, we find there is no reason for this bench to deviate from such a view already taken.
Appeal allowed - decided in favor of appellant.
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2018 (1) TMI 1495 - TELANGANA AND ANDHRA PRADESH HIGH COURT
Compliance with the Pre-deposit - GTA services - HELD THAT:- The petitioner is entitled to be heard by respondent No.3 for as per its plea HUL Limited has already discharged its liability towards GTA services, which allegedly cover even the service tax demanded from the petitioner, and the same has not been given credit to by respondent No.1, the petitioner may not be liable to pay further amount towards pre-deposit.
The respondent No.3 is directed to consider the plea of the petitioner and take a decision as to whether the appeal filed by it deserves to be entertained without pre-deposit, on the facts of the case - petition disposed off.
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2018 (1) TMI 1486 - CESTAT KOLKATA
Imposition of penalty u/s 77 and 78 - tax liability discharged - Held that:- The contention of the appellant is that they applied for Service Tax registration in May, 2010. This fact is not clearly coming from the records of the case. In any event, it shows that the appellant was aware of the levy of service tax which they have not discharged within the stipulated time. Therefore, the submission of the Learned Counsel of the bona fide belief on the part of the assessee cannot be accepted.
The Commissioner (Appeals) had modified the Adjudication Order and imposed penalty of equal amount under Section 78. In such situation, the benefit under Section 80 of the Act 1994 should be extended in respect of penalties under Section 77(1)(a) and 77(2) as the same are excessive.
The demand of Service Tax along with interest is upheld and penalty under Section 78 is also upheld - rest of penalties set aside - appeal allowed in part.
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2018 (1) TMI 1485 - MADRAS HIGH COURT
Levy of service tax - construction services involving works contract - period from 10.09.2004 - Held that:- In the light of the decision of the Hon'ble Supreme Court, in the case of Commissioner of C.EX. & CUS., Kerala Vs. Larsen & Toubro Ltd., [2015 (8) TMI 749 - SUPREME COURT], these Writ Petitions stand disposed of in terms of the said judgment, and it is open to the individual members of the Association to take appropriate stand, as and when, any action is taken by the Department, in terms of the observations made by the Hon'ble Supreme Court - petition closed.
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2018 (1) TMI 1484 - CESTAT, NEW DELHI
Levy of service tax - outdoor catering services - benefit of exemption under N/N. 21/2004-ST dated 10.09.2004 - penalties - Held that:- The matter has come up before the Tribunal in the assessee-Appellants’ own case M/S SHIV SAI CATERER & SUPPLIERS AND M/S S.S. SANSTHAN VERSUS CCE, INDORE [2018 (1) TMI 1483 - CESTAT, NEW DELHI] where the Tribunal has confirmed the demand of Service Tax, but by taking a lenient view dropped the penalties.
Demand of service tax upheld - penalties set aside - appeal allowed in part.
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2018 (1) TMI 1483 - CESTAT, NEW DELHI
Levy of service tax - outdoor catering services - benefit of exemption under N/N. 21/2004-ST dated 10.09.2004 - penalties - Held that:- The matter has come up before the Tribunal in the assessee-Appellants’ own case M/S SHIV SAI CATERER & SUPPLIER AND M/S S.S. SANSTHAN VERSUS CCE, INDORE [2016 (8) TMI 44 - CESTAT NEW DELHI], where the Tribunal has confirmed the demand of Service Tax, but by taking a lenient view dropped the penalties.
Demand of service tax upheld - penalties set aside - appeal allowed in part.
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2018 (1) TMI 1482 - CESTAT CHANDIGARH
Refund of CENVAT Credit - rejection on the ground that the export turnover was not mentioned in the ST-3 returns for the relevant period - N/N. 27/2012, dated 18-6-2012 - Held that:- Neither in the notification, nor in the Cenvat Credit Rules, there is a condition that the refund sanctioning authority has to make a reference to ST-3 returns for ascertaining the export turnover of services - also, the appellant had given the C.A. certificate and the certification about their FIRC for realized foreign currency. The facts of the export of services and receipt of foreign currency exchange had not been disputed.
By bringing the condition of non-declaration of export turnover in ST-3 returns, the adjudicating authority as well as the Ld. Commissioner (Appeals) has attempted to bring an extraneous condition, which is not prescribed in the notification.
It will be in interest of justice that the matter is remanded back to the adjudicating authority to re-examine the contested refund claim - appeal allowed by way of remand.
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2018 (1) TMI 1477 - CESTAT CHENNAI
Valuation - Technical Inspection and Certification Service - inclusion of value of X-ray films and certain charges (unit charges and transportation charges) in assessable value - N/N. 12/2003-S.T. - second SCN - time limitation - penalty - Held that:- The invoices submitted though show the film as well as certain unit charges, there is no evidence of sale of the films to the client. The claim of the appellant that charges for film shown separately should satisfy the condition of N/N. 12/2003 is not tenable. In the absence of any evidence to show that there were sale of goods in the provision of service, N/N. 12/2003 cannot be applied - Similarly, the claim of reimbursable expenses on travel and stay of staff during the course of rendering service cannot be accepted on the face value as the invoices only show unit charges.
Time Limitation - Held that:- There were two show cause notices invoking extended period. The second notice cannot invoke the extended period as the issue of tax liability and valuation should have been examined comprehensively when the matter was investigated by the officers when recording in the first notice - the extended period of limitation involved in the second notice is not sustainable.
Penalty - Held that:- Agreeing with the appellant that the issue of valuation is taken from the documents and invoices maintained by the appellant and there is no case for deliberate suppression of material facts in the present case, accordingly, the penalty also is not liable to be sustained.
The tax liability confirmed against the appellant shall be restricted to the normal period with no penalty - appeal allowed in part.
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2018 (1) TMI 1464 - SETTLEMENT COMMISSION, CUSTOMS, CENTRAL EXCISE AND SERVICE TAX, CHENNAI
Non-payment of service tax - Renting of Immovable Property Services - applicant had taken registration with Service Tax department but did not discharge service tax on taxable income received - period from April, 2010 to March, 2015 - demand of service tax under proviso to Sections 73(1) of the Finance Act, 1994 and interest thereon under Section 75 of the Finance Act, 1994 and penalty u/s 76, 77 and 78 of the Finance Act, 1994 apart from demanding late fee for belated filing of returns under Section 70 of the Finance Act, 1994 - An amount of ₹ 51,69,268/- paid by the applicant during the course of investigation was sought to be appropriated towards the service tax demand.
Collection of market fee/slaughter house charges - Held that:- The right to collect market fee/slaughter house fee were granted to individuals (lessees) for a financial year based on bids offered during auction conducted by the Municipal Council, Mahaboobnagar for a specified amount. The lessee shall deposit part of the specified amount as three months advance towards the market fee/slaughter house fee. The lessee shall remit the balance specified amount in nine monthly equal instalments starting April of the financial year. The three months advance amount paid by the lessee will be adjusted in the last three months of the financial year (January-March). The lessees shall collect the market fee/slaughter house fee as per Scheduled Rates already fixed and notified by the Municipality - collection of market fee/slaughter house charges were not towards renting of immovable property - Bench holds that no service tax is payable on slaughter house fee collected by the applicant during the impugned period.
It is also seen that with respect to ‘market fee’, Board vide Circular No. 157/8/2012-S.T., dated 27-4-2012 had clarified that the services provided by Agricultural Produce Marketing Committee are classifiable under ‘Business Auxiliary services’. Para 5 of the said circular reads as “As statutory bodies, APMCs provide basic facilities in the market area out of the ‘market fee ’ collected from the licencees, mainly to facilitate the farmers, purchasers and others. APMCs provide a host of services to the licencees in relation to procurement of agricultural produce, which are ‘inputs’ in terms of the definition given in Section 65(19) of the Finance Act, 1994 itself. To that extent the meaning of ‘input’ is much wider in scope than the meaning assigned in Rule 2(k) of Cenvat Credit Rules, 2004. Therefore, it is clarified that the services provided by the APMC are classifiable as BAS and hence covered by the exemption under Notification 14/2004-S.T.”
Demand of service tax under the category of ‘Renting of Immovable Property Service’ - Held that:- It is observed that prior to 1-7-2012, the services provided by the applicant would not be covered under Renting of immovable property service but more appropriately covered under Business Auxiliary Service and exempted in terms of Notification No. 14/2004 S.T., dated 10-9-2004. With effect from 1-7-2012, with the introduction of Negative List, the services provided by a ‘local authority’ such as Panchayat, Municipality, Municipal Committee, etc., as well as services relating to agriculture and agricultural produce are covered under the Negative List. Further activity in relation to any function entrusted to a municipality under Article 243W of the Constitution are specifically exempt under mega exemption notification No. 25/2012-S.T., dated 20-6-2012. In any case, the charges collected by the applicant cannot be considered as consideration for services relating to renting of immovable property. Hence the Bench holds that the demand of Service Tax on market fee under ‘Renting of Immovable property service in not sustainable.
Penalty - Held that:- Bench is in agreement with the department’s view that but for the investigation done by the Anti-Evasion Wing of the Jurisdictional Commissionerate, the non-payment of service tax by the applicant would not have come to light and there would have been loss of revenue to the Government exchequer. However considering the fact that the applicant is a Municipality, a local authority, there could be no reasonable belief to charge mala fides - the Bench considers it a fit case to accord full immunity from penalty to the applicant.
Prosecution - Held that:- The Bench considers it as a fit case for grant of immunity from prosecution to the applicant.
Application disposed off.
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2018 (1) TMI 1463 - SETTLEMENT COMMISSION, CUSTOMS, CENTRAL EXCISE AND SERVICE TAX, CHENNAI
Maintainability of application before settlement commission - contentious issue - Whether the applicant is eligible for exemption in respect of Erection, Commissioning or Installation services which is sought to be classified under the Works Contract Services in the SCN as it involved transfer of property in goods so as to deny the benefit of exemption under Notification No. 25/2012-S.T. for the period after 1-7-2012?
The applicant’s contention is that Sl. No. 12 of the mega exemption Notification No. 25/2012-S.T., dated 20-6-2012 clearly excludes services provided to Government authority by way of construction, erection, commissioning, installation of canal, dam or other irrigation works and laying of Pipelines conduit for water supply or water treatment and the same are eligible for exemption which is rejected by the Commissioner on the ground that the services rendered to M/s. KBJNL, a Govt., of Karnataka undertaking fall under the category of “Works Contract Service” and as such being a declared service under Section 66E(h) of the Finance Act, 1994 is not eligible for exemption under clauses (d) & (e) of Sl. No. 12 of the Notification No. 25/2012-S.T.
Held that:- The Bench is of the considered view that Settlement Commission is not the forum to decide upon contentious issues, by evaluating the evidences let in by the rival parties to the proceedings. Such an act would tantamount to the Settlement Commission adjudicating upon the notice, based on the submissions made by the rival parties to the proceedings. It is now a well settled proposition that the Settlement Commission is not an adjudicating authority. It is only an arbitration forum where a dispute is settled in the interest of both the parties within the framework of law.
This principle has clearly been enunciated by the Hon’ble High Court of Bombay in the case of Amrut Ornaments [2014 (3) TMI 418 - BOMBAY HIGH COURT].
The Bench observes that the case is not one that can be settled in this Forum in view of rival claims, leading to total divergence on facts and on law, which fall under the domain of adjudicating authority. The Bench observes that the issue of analysing the facts, interpretation of legal provisions and exemption notification and consequently determining the tax liability or otherwise of services merely on the basis of claims made by the applicant vis-a-vis the counter claims made by the department cannot be decided in this forum as in an adjudication proceeding - The case on hand, the Bench observes, involves both disputed questions of fact and law. Hence, it would be more appropriate that the case is adjudicated upon by the proper adjudicating authority after appreciation of facts and evidence let in by the applicant and pass order by following the due process of law.
The Bench, by virtue of the powers vested in it in terms of Section 32L of the Central Excise Act, 1944, made applicable to Service Tax matters under Section 83 of the Finance Act, 1994 rejects the case and sends the case back to the adjudicating authority for adjudication in accordance with the provisions of the law.
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2018 (1) TMI 1462 - SETTLEMENT COMMISSION, CUSTOMS, CENTRAL EXCISE AND SERVICE TAX, CHENNAI
Non-payment of service tax - manpower recruitment and supply agency service - it was alleged that consideration in respect of services provided, though Service Tax was claimed and received by the applicant, they had not declared the actual service consideration in the periodical statutory ST3 returns - POT Rules - N/N. 30/2012-ST., dated 20-6-2012 - Applicant contended that they were totally new to business segment and not well-versed with the rules and regulations.
Held that:- The Bench finds there is considerable force in the argument put forth by the Commissioner. Even though the Service Tax was wrongly paid by the Service recipients, instead of the Service provider, i.e. the Applicant, and even accepting that the wrong payment had happened under mistake of law, the fact remains that Service Tax was short paid by the Service provider vis-a-vis the value determined by them under Section 67 of the Finance Act, 1994. Ignorance of law cannot be pleaded as an excuse for not fulfilling the statutory fiscal obligations. If the Service recipients had paid Service Tax, which they need not have paid, it was for them to approach the proper authority and seek refund - Payment of Service Tax by the service recipients of the Applicant cannot extinguish the liability cast on the Applicant.
The Bench is of the view that the Applicant is required to pay an additional Service Tax of ₹ 6,70,831/-. The Bench, thus, settles the Service Tax liability at ₹ 80,30,602/- (Rs. 80,22,513 + ₹ 8,089/- (not covered in the Show Cause Notice, but accepted by the Applicant and paid). The Applicant, having paid ₹ 73,59,771/- (Rs. 73,51,682/- + ₹ 8,089/-), is required to pay the remaining amount of ₹ 6,70,831/-.
Liability of Interest - Held that:- As the Applicant is required to pay an additional amount of ₹ 6,70,831/- towards Service Tax, the quantum of interest payable shall vary and the Applicant shall work out the revised interest liability to the satisfaction of the Jurisdictional Commissioner.
Penalty - Held that:- It has to be construed that the Applicant had failed to discharge the statutory obligations and their act entails penalty, as proposed in the show cause notice - The Co-Applicant also becomes liable to penalty, as proposed, inasmuch as the contracts entered into by the Applicant had explicit mention about the taxability of services rendered and he was responsible for declaring the correct taxable service consideration to the department, which had not been done - However, the Bench observes that the Applicant had made a full and true disclosure and had paid all the Service Tax dues with interest, barring a small disputed portion. The Applicant had also cooperated with the department and the Settlement Commission during the proceedings, which act makes a case for the Applicant and the Co-Applicant for grant of partial waiver from penalty - part penalty waived.
Prosecution - Held that:- The Bench considers it a fit case for grant of immunity from prosecution to the Applicant and Co-Applicant.
Application disposed off.
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2018 (1) TMI 1430 - CESTAT ALLAHABAD
Levy of Service Tax - amount of security deposit, by the builder-appellant, who has constructed residential flats - Held that:- The amount in dispute, is not towards providing of any service provided or to be provided. Further, for the said amount is received by a builder as a pure agent and/or trustee of the flat holders and/or owners, is not liable to service tax - appeal allowed - decided in favor of appellant.
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2018 (1) TMI 1398 - CESTAT NEW DELHI
Business Auxiliary Services - Respondent entered into an agreement with M/s Discount City Hotels Ltd. UK (DCH) for facilitating the working of its back office in India with respect to running and maintaining online hotel booking - Held that: -The issue is squarely covered by the decision in the case of M/S PAUL MERCHANTS LIMITED & OTHERS VERSUS CCE, CHANDIGARH [2012 (12) TMI 424 - CESTAT, DELHI (LB)], where it was held that The services provided by the agents and sub-agents throughout during the period of dispute are classifiable as 'business auxiliary service' under section 65(105)(zzb) read with section 65(19) of the Finance Act, 1994 and the same have been exported in terms of the provisions of rule 3(1)(iii) read with rule 3(2) of the Export of Services Rules, 2005 and hence no service tax is leviable - appeal dismissed - decided against Revenue.
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2018 (1) TMI 1391 - CESTAT ALLAHABAD
Utilization of CENVAT Credit - eligible service or not - taxable services provided from outside India and received in India - Rule 3(4) of the Cenvat Credit Rules, 2004 - Held that:- An identical issue has come up for consideration before the Tribunal in the case of M/s Indian Acrylic Ltd. vs CCE, Chandigarh-II [2013 (1) TMI 460 - CESTAT, NEW DELHI], where it was held that appellant is entitled to utilise the Cenvat credit for discharge of Service Tax for the commission paid to the overseas agents - appeal dismissed - decided against Revenue.
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2018 (1) TMI 1389 - CESTAT ALLAHABAD
Refund of Service tax wrongly paid - rejection of refund claim on the ground that the appellant was not registered with the Service Tax Department - revenue also placed reliance in the case of Collector of Central Excise, Kanpur Versus Flock (India) Pvt. Ltd. [2000 (8) TMI 88 - SUPREME COURT OF INDIA], wherein it had been held that the assessment cannot be challenged by way of subsequent claim of refund.
Held that:- There was no appealable order in the facts of the present case and as such the ratio of the ruling of the Apex Court in the case of Flock (India) Pvt. Ltd. [2000 (8) TMI 88 - SUPREME COURT OF INDIA] is not applicable and have been wrongly relied upon by the ld. Commissioner (Appeals).
The appellant is entitled to refund of Service Tax, wrongly paid through, M/s R. K. Agencies, Lucknow - appeal allowed - decided in favor of appellant.
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