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Service Tax - Case Laws
Showing 101 to 120 of 323 Records
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2018 (2) TMI 1128 - MADRAS HIGH COURT
Refund claim - time limitation - export of services out of India - validity of SCN - Revenue's case is that as per Section 11(B) of the CEA 1944, the refund claim has to be filed within one (1) year from the relevant date and the relevant date in the case of the petitioner is the date of order passed by the appellate authority and if such date is reckoned, the application for refund dated 27.04.2017 is filed beyond the period of one year - Held that: - "Relevant date" means, in the case of export of services out of India, where a refund of CENVAT paid is available in respect of the export of services or as the case may be, the excisable material used in the export of services shall be the relevant date and if the goods are exported by sea or air, the date on which the ship or the aircraft in which such goods are loaded, leaves India, or if it is exported by land, the date on which such goods pass the frontier, or if the goods are exported by post, the date of despatch of goods by the Post Office concerned to a place outside India.
The refund has not accrued to the petitioner on account of any order or judgment but on account of statutory provisions coupled with the notification where input services are used for export of services. Thus, the reliance placed on the explanation (B)(ec) does not render any support to the case of the revenue.
The SCN is without jurisdiction - petition allowed - decided in favor of appellant.
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2018 (2) TMI 1127 - CESTAT MUMBAI
Banking and other financial services - Whether the appellant is liable to discharge the Service Tax liability on the amount retained by him while conducting the Chit Fund services?
Held that: - in the case of Margadarshi Chit Funds [2017 (7) TMI 224 - SUPREME COURT OF INDIA] it was held that the amount retained by the Chit Fund Manager (like the appellant herein) is not liable for tax under Finance Act, 1994 under the category of Banking and other financial services - appeal allowed - decided in favor of appellant.
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2018 (2) TMI 1126 - CESTAT NEW DELHI
Construction of individual residential houses for Rajasthan Housing Board - case of appellant is that these houses are not to be considered as residential complexes as they do not share any common facilities and hence do not attract service tax - Held that: - Since a categorical finding is required before confirming tax liability under "Residential Complex Service", we find it fit and proper to set aside the impugned order and to remand the matter to the Original Authority for a fresh decision - appeal allowed by way of remand.
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2018 (2) TMI 1125 - CESTAT NEW DELHI
Commercial or Industrial Construction Services - demand pertains to 4 construction projects undertaken by the appellants viz. (a) Era Business School, (b) National Automotive Testing and R& D Infrastructure Projects, (c) Office Building for Naya Raipur Development Authority and (d) Hostel for NIT Calicut.
Era Business School - Held that: - Era Education School is imparting only education and the same cannot be considered as a commercial activity. Therefore, for the project carried for construction of Era Business School cannot be taxed under “Commercial or Industrial Construction Service” - demand set aside.
National Automotive Testing and R& D Infrastructure Projects - Held that: - although the said centre has been registered with the Government but the said centre is not recognized as a centre for testing the vehicles for homologation by the Government of India. The said testing centre is charging money for testing and giving its reports. The said activity is commercial in nature - demand upheld.
Office Building for Naya Raipur Development Authority - Held that: - From the scope of the project undertaken by the appellant for construction of building for Naya Raipur Development Authority, who involves in commercial activity of sale and purchase of land qualifies to be taxed under the category of “Commercial and Industrial Construction Service - demand upheld.
Hostel for NIT Calicut - Held that: - the construction of the said hostel cannot be considered as construction of building which is used for business commerce or commercial building. In that circumstance, for the said project, the appellant is not liable to pay service tax - demand set aside.
Appeal allowed in part.
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2018 (2) TMI 1124 - CESTAT, BANGALORE
Penalty u/s 78 - intent to evade - Held that: - there was no intention to evade service tax on the part of the appellant because the appellant has filed the returns and in ST-3 return, he has shown the adjustment under Column ‘D2’ instead of ‘D4’ which is only an error in disclosure - from the perusal of the service invoice which is placed on record and also the credit notes issued by the appellant and the disclosure in the service tax return, there is no revenue loss in the present case as it is only an adjustment of the credit availed - appeal allowed - decided in favor of appellant.
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2018 (2) TMI 1123 - CESTAT MUMBAI
Monetary limit involved in appeal - Non-discharge of tax liability - Held that: - the disputed tax liability is less than ` 10 lakhs and as per the litigation policy of the Government of India, the appeal stands dismissed.
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2018 (2) TMI 1122 - CESTAT NEW DELHI
Manpower and recruitment agency service - demand of service tax of ₹ 6,60,859/- pertaining to EPF and ESI - Held that: - service tax demand cannot be confirmed on the employer’s contributed amount towards P.F., E.P.F. and E.S.I. - demand set aside.
Service of packing - job of packing / branding of toilet soap in the factory of M/s. Godrej Consumer Products - demand of service tax - Held that: - it appears that packing cost included in the final product and excise duty was paid by M/s. Godrej. But no duty was paid by the appellant. Appellant is providing the services of packing of soap cake which is essentially a labour supply contract and not a packaging service as contended by the appellant. The appellant has not paid the service tax on the final product - demand upheld.
Demand of ₹ 60,728/- pertaining stitching and washing charges which has been received from clients - Held that: - learned Counsel has submitted that she is not contesting this demand. Same is dismissed as not contested.
Appeal allowed in part.
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2018 (2) TMI 1121 - CESTAT NEW DELHI
Advertising Service - non-payment of service tax - Held that: - the service Tax in respect of the services provided by the appellant had already been discharged by the main advertiser. Hence, it is not the case of non-payment of tax by the appellant for providing the taxable service.
Chandigarh Bench of the Tribunal in the case of Lone Star Engineers [2016 (9) TMI 489 - CESTAT CHANDIGARH] have held that the payment of main contractor on behalf of the appellant shall be treated as payment made by the appellant.
Appeal allowed - decided in favor of appellant.
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2018 (2) TMI 1120 - CESTAT MUMBAI
Taxability - manpower supply and recruitment agency services - Held that: - the respondent was awarded specific jobs and not the supplies of labour and the consideration paid for such specific jobs was based upon per piece and not on salary basis to the employees/labour utilized for such activity - appeal dismissed - decided against Revenue.
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2018 (2) TMI 1119 - CESTAT, BANGALORE
Levy of service - works contract service - execute turnkey contracts for supply, erection, installation and commissioning of power transmission and distribution systems - Held that: - this issue is no more res integra and has been settled by the Hon'ble Supreme Court in the case of L&T Ltd. [2015 (8) TMI 749 - SUPREME COURT] wherein the Hon'ble apex court has held that prior to 01/062007, there was no charging section to specifically levy service tax on WCS, or mechanism to tax service tax element derived from gross amount charged for works contract less value of the property in goods transferred in execution of works contract.
Appeal allowed - decided in favor of appellant.
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2018 (2) TMI 1118 - CESTAT, BANGALORE
Jurisdiction - power of Commissioner (A) to remand - Held that: - there is no infirmity in the impugned order whereby the Commissioner (A) has only remanded the matter to the original authority - the Commissioner (A) has the power to remand the case to the original authority under the Service Tax - appeal dismissed - decided against Revenue.
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2018 (2) TMI 1117 - CESTAT CHENNAI
Penalty u/s 78 - Erection, commissioning and installation services - short-payment of service tax - Held that: - substantial amount of the service tax has been discharged prior to issuance of show cause notice - the penalty imposed in the present case is unwarranted - appeal allowed - decided in favor of appellant.
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2018 (2) TMI 1116 - CESTAT CHENNAI
Clearing and forwarding agency service - appellant received ₹ 2,91,000/- per month from IOCL and did not discharge the service tax on said amount - Department was of the view that the said amount is also includible in the total taxable value in respect of C&F Agency services - Held that: - Larger Bench decision in the case of Sri Bhagawathy Traders Vs CCE Cochin [2011 (8) TMI 430 - CESTAT, BANGALORE] relied upon which has held that only the actuals can be considered to be reimbursable expenses which are to be excluded from the total taxable value.
For the limited purpose of re-consideration whether the amount received is reimbursable expenses or not and whether the decisions relied upon would apply to the case, we remand the matter to the adjudicating authority.
Penalty imposed is unwarranted and is set aside.
Appeal allowed in part and part matter on remand.
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2018 (2) TMI 1115 - CESTAT CHENNAI
Refund of service tax - N/N. 40/2007-ST dated 17.9.2007 - input services - Held that: - It is not disputed that the appellant has filed the refund claim under the said notification. However, later by N/N. 17/2008 dated 1.4.2008, the impugned services have been included in the specified services. Since the refund claim pertains to services prior to 1.4.2008, the appellant having sought refund under N/N. 40/2007 is not eligible for the refund since these are not specified / exempted services as per this notification - refund rightly rejected - appeal dismissed - decided against appellant.
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2018 (2) TMI 1114 - CESTAT CHENNAI
Valuation - includibility - amount of ₹ 3,39,539/- was received by the appellants towards reimbursement of advertisement charges from their client M/s. Watanmal Pvt. Ltd. - Department was of the view that these expenses are incurred in providing the taxable service and has to be included in the total value for the purpose of discharging service tax - whether the amount of ₹ 3,39,539/- received by the appellant would fall under reimbursable expenses or not?
Held that: - The appellants are engaged in rendering Manpower Recruitment and Supply Agency service and not any Advertisement Agency service - it can be seen from the advertisement charges, which was incurred to be a one-time occasion and was only expenses incurred on behalf of the client which are reimbursed on actual basis - reliance placed in the case of Commissioner of Service Tax Versus M/s. Sangamitra Services Agency [2013 (7) TMI 862 - MADRAS HIGH COURT], where it was held that if a receipt is for reimbursing the expenditure incurred for the purpose, the mere act of reimbursement, per se, would not justify the contention of the Revenue that the same, having the character of the remuneration or commission, deserves to be included in the sum amount of remuneration / Commission - demand set aside - appeal allowed - decided in favor of appellant.
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2018 (2) TMI 1113 - CESTAT CHENNAI
Classification of services - appellant constructed a shopping mall namely Chennai Citi Centre and also individual dwellings in Tsunami affected areas at Kanyakumari on behalf of World Vision India which is a non-profitable organisation - also, another project undertaken by the appellant was construction of residential quarters for Central Government and Defence Department and Theni Medical College - appellant contends the activities to fall under works contract services, whereas, Revenue alleges these activities to fall under Commercial or Industrial Construction Services.
Held that: - Hon. Apex Court in the case of Larsen & Toubro Ltd [2015 (8) TMI 749 - SUPREME COURT] has held that works contract services are not subject to levy of service tax prior to 1.6.2007 - Admittedly appellants are registered under the category of works contract services from 1.6.2007 and are discharging the service tax under this category.
The demand is raised for the period from 10.9.2004 to 30.9.2007 under the category of ‘Construction of residential complex’ and ‘Commercial or Industrial Construction Services’. On perusal of the records, it shows that the appellant had undertaken the works on a turnkey project basis - it is seen that the construction services were completed prior to 1.6.2007. In such case, the decision laid in Larsen & Toubro judgement (supra) would squarely apply to the demand raised prior to 1.6.2007 and requires to be set aside, which we hereby do.
Whether the decision of L$T is applicable to the amount received by appellant after 1.6.2007 requires verification. For this limited purpose, the matter requires to be remanded to the adjudicating authority who shall verify, whether, the amount received after 1.6.2007 is in respect of construction services completed prior to 1.6.2007 or not - appeal allowed by way of remand.
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2018 (2) TMI 1109 - CESTAT ALLAHABAD
CENVAT credit - certain equipments procured for providing taxable output service - FACT-10 Meter RF Shielded EME chamber - Heater with blower & panel with accessories - Clean air management system and prefabricated clean room enclosure - Infiniti Pro P-IV 3.2 Ghz personal computer - whether on the items in question appellant is entitled to avail Cenvat credit on not? - Held that: - the appellant has taken Cenvat credit as capital goods on the goods in question. Although they do not qualify as capital goods as per Rule 2(a) of Cenvat Credit Rules, 2004, but in alternate it is the claim of the appellant that these goods be treated as inputs in terms of rule 2(k)(ii) of Cenvat Credit Rules, 2004.
The input is required to be used for providing output service. Admittedly these inputs have been used by the appellant for providing output service - similar issue came up before the Tribunal in the case of GTL Infrastructure Ltd. [2014 (9) TMI 647 - CESTAT MUMBAI] wherein this Tribunal has held that As per Rule 2 (k) (ii) of the Cenvat Credit Rules, 2004 all goods are entitled for Cenvat Credit which are used for providing any output service.
Appellant has correctly availed the Cenvat Credit on the goods in question and same may be treated as input for providing output service - appeal allowed - decided in favor of appellant.
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2018 (2) TMI 1057 - SC ORDER
Levy of penalty u/s 28 of the FA, 1994 at a reduced rate of 25% - decision in the case of Commissioner of CGST And Central Excise, Surat Versus Metro Security Services [2017 (7) TMI 529 - GUJARAT HIGH COURT] contested - Held that: - delay condoned - leave granted.
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2018 (2) TMI 1056 - BOMBAY HIGH COURT
Levy of service tax - maintenance charges for upkeep of the apartment or premises - whether the CESTAT was right in holding that the assessee was not providing Management, Maintenance or Repair Service by collecting amount from prospective flat buyers, for maintaining the building, in the guise of deposits which is not returnable? - Whether the CESTAT has erred in holding that assessee is providing statutory service and has rendered definition provided under Section 65(105)(zzg) of Finance Act as null and void by accepting that he is not providing Management, Maintenance or repair service by maintaining the building and collecting amount for that or not? - interest - penalty.
Held that: - management, maintenance or repair means any service provided by any person under a contract or an agreement, or a manufacturer or any person authorised by him, in relation to, the management of properties, whether immovable or not, maintenance or repair of properties, whether immovable or not, or maintenance or repair including reconditioning on restoration, or servicing of any goods, excluding a motor vehicle. Then, there is an explanation which clears doubts and it declares that for the purposes of this clause, namely, 65 (64), goods includes computer software and properties include information technology software. The words “Taxable service” is defined in Section 65, Clause (105) to mean any service provided or to be provided to any person by any person in relation to management, maintenance or repair.
Since the MOFA has been referred by the counsel appearing before us, we would be required to make a reference to its provisions. The MOFA is an Act to regulate in the State of Maharashtra, the promotion of the construction of the sale and management, and the transfer of Flats on ownership basis. It was brought to the notice of the State Government that, consequent on the acute shortage of housing in several areas of the State of Maharashtra, sundry abuses, malpractices and difficulties relating to the promotion of construction, and the sale and management and transfer of Flats taken on ownership basis exist and are increasing.
The Act must, therefore, receive an interpretation consistent with its object and purpose. This Court, on several occasions, had emphasised the aims and objects of the Act.
The deposit or the monies themselves are held and appropriated towards payment of taxes, etc., popularly known as outgoings. The building and the Flats therein has to stand intact till all the Flats or units are sold and the statutory obligations are fully discharged. This is not a service of the nature understood by Section 65 (64) of the Finance Act, 1994. It is not a contractor simplicitor of maintenance of immovable property. It is not as if there is a existing building comprising of Flats, fully occupied, the maintenance and upkeep of which is handed over under a contract. It is a statutory obligation superimposed on a contract to sell a Flat/unit in a building to be constructed on a piece or parcel of land. That cannot be confused with a taxable service as defined under the Finance Act, 1994. The day-to-day upkeep, maintenance and repair is till the statutory duty is fully performed.
The Revenue does not wish to take into consideration the background in which buildings are maintained and till they are conveyed with complete title to even the land beneath. Thus, the provisions of Sections 5 and 6 and eventually the further provisions right upto Section 13 of the MOFA would make it clear that builder and developer maintains and repairs the property till it is conveyed or the title in the same is conveyed to the Flat purchasers or the legal entity which would ultimately be formed by him. Thus, a cooperative housing society or a company would have to be formed of all those Flat purchasers who have purchased the Flats prior to or under construction, namely, subsequently purchased Flats. The completion of the building or it being rendered fit for occupation is one of the duties and obligation of the builder and promoter under this law. For them to be conveyed he has to maintain the property.
Appeal dismissed - decided against Revenue.
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2018 (2) TMI 1055 - MADRAS HIGH COURT
Maintainability of petition - classification dispute - alternative remedy - Held that: - in the instant case, the petitioner/assessee did not place the decision of the Division Bench of this Court, in the case of Commissioner of C. Ex. Tiruchirappalli Vs. Indian Humes Pipes Co. Ltd. [2015 (9) TMI 479 - MADRAS HIGH COURT] nor the decision in the case of Lanco Infratch Ltd., Vs. Commissioner of Customs, Central Excise and Service Tax, Hyderabad [2015 (5) TMI 37 - CESTAT BANGALORE (LB)] before the respondent, at the time of adjudication - this Court is inclined to grant one more opportunity to the assessee to go before the Assessing Officer and putforth their case, despite the fact that they have failed to place the decision - petition allowed by way of remand.
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