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Service Tax - Case Laws
Showing 121 to 140 of 323 Records
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2018 (2) TMI 1054 - CESTAT NEW DELHI
Works contract service - appellants are engaged in supply and erection of raw water piping and pumping system for M/s Raj West Power Limited and Common Effluent Treatment Plant and RO System for ELDCO SIDCUL Industrial Park at Sitarganj in Rajasthan - Revenue entertained a view that the appellants are liable to service tax under works contract service and for the same, gross value which includes the materials supplied also should have been considered by the appellant - case of appellant is that they had separate contracts – one for supply of materials and another for execution of work either for erecting piping and pumping of raw water supply or for effluent treatment for two clients.
Held that: - It is clear that the appellant had shown two contracts both dated 20/08/2007 in respect of Barmer Project. One is claimed to be supply contract and another is claimed to be erection contract. There is a coordination agreement dated 30/08/2007 - The said coordination agreement readwith the supply/erection contracts leads to an apparent conclusion that the intended purpose of both the parties is the supply and erection of raw water piping and pumping system.
While examining the two contracts now contested in the present appeals, we note except for substitution of the word “contractor” for “supplier” the warranty or defects liability condition mentioned in Clause 34 of both the agreements are identical. It clearly establishes that as the supplier and contractor is one and the same the warranty and defect liability is to be on the appellant without any distinction for supply contract or erection contract. The defect liability clause in labour contract also talks about “defect in material”, “bad materials”. Materials are supplied in terms of supply contract which also carries same terms. This alongwith the scope of coordination agreement clearly reveals that the scope of composite works contract is clear and should be read together for the purpose of service tax.
Composition scheme for works contract - concessional rate of duty - Held that: - If the erection contract is only a service contract there is no question of availing composition scheme available to works contract service. In fact, the appellants later switched over to payment of service tax with full rate without composition. This clearly reveals that action of the appellant is with full knowledge of the legal implication of the course of action for discharging service tax by them.
Extended period of limitation - Held that: - the appellant is fully aware of the legal implications of service tax liability on composite works contract. Their act of first paying composition rate on what is claimed to be a service contract and later switching over to full rate of payment without composition clearly reveals the knowledge and deliberate intend of the appellant - extended period rightly invoked.
Appeal dismissed - decided against appellant.
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2018 (2) TMI 1053 - CESTAT AHMEDABAD
Advertising service to Government Departments - non-payment of service tax - case of appellant is that since the first demand notice was issued invoking extended period, alleging suppression second demand notice invoking extended period is bad in law - Held that: - the principles laid down by the Hon'ble Supreme Court in Nizam Sugar Factory [2006 (4) TMI 127 - SUPREME COURT OF INDIA] is applicable to present case, where it was held that When the first SCN was issued all the relevant facts were in the knowledge of the authorities. Later on, while issuing the second and third show cause notices the same/similar facts could not be taken as suppression of facts on the part of the assessee as these facts were already in the knowledge of the authorities. Thus there was no suppression of facts on the part of the assessee/appellant.
Appeal allowed - decided in favor of appellant.
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2018 (2) TMI 1052 - CESTAT CHENNAI
Nature of receipt of donation - clubs or associations services - Valuation - it was alleged that subscription and other fees collected from the members of such clubs, associations etc., form taxable income as defined in Section 65 (25) (a) read with definition of corresponding taxable service in Section 65 (105) (zzze) of the Finance Act, 1994 - Held that: - there was no quid pro quo vis-`-vis such donations by way of providing any service to such donors by the appellant in return, has been brought forth by Revenue - these amounts would not in any way come within the ambit of amounts received against provision of services.
Such donations even if made by the non-members, cannot be made liable to service tax under the Finance Act, 1994 - Appeal allowed - decided in favor of appellant.
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2018 (2) TMI 1051 - CESTAT NEW DELHI
Principles of Natural Justice - there was no discussion of any of the points raised by the appellant except reproduction of all the points raised with a summary conclusion confirming the original order - Held that: - The appellants made elaborate submissions on each one of the points now in dispute and we note there are clear judicial pronouncements covering at least two of these disputes. These were not considered by the lower authorities - matter remanded for fresh consideration - appeal allowed by way of remand.
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2018 (2) TMI 1050 - CESTAT NEW DELHI
Valuation - non-inclusion of certain considerations received by the appellants, which they claimed to the reimbursement expenses - Held that: - Admittedly, the legal position is that reimbursement expenses made on actual basis are not to be included in the gross taxable value. This aspect can be verified with the basic documents, which are available with the appellant and list of such expenses are already submitted before the jurisdictional authorities. This requires cross verification with the documents.
Penalty - Held that: - Mere failure to pay tax or failure to comply with any provisions without any intention to evade tax will not attract Section 78 - penalty set aside.
Matter remanded to the original authority for decision on the claim of the appellant regarding correct classification as well as exclusion of reimbursement expenses and value of sale of goods - appeal allowed by way of remand.
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2018 (2) TMI 1049 - CESTAT NEW DELHI
Liability of service tax - Commercial training and coaching service - full Service Tax liability on the gross value received by the students has been discharged by MAAC - Held that: - the appellant do not receive any amount from the service recipient as a consideration. The arrangement is that the gross amount paid by the students is credited to MAAC on which Service Tax has been discharged - It is clear that the appellant acts as an instrument in carrying out the training programme which is designed and managed by the MAAC - All these facts will indicate that MAAC is overall managing and the commercial coaching and training service suffered tax at their hands - no liability arises in the hands of appellant.
Demand set aside - appeal allowed - decided in favor of appellant.
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2018 (2) TMI 1048 - CESTAT NEW DELHI
Liability of tax - real estate agent service - Revenue entertained a view that this consideration is received by the appellant acting as a real estate agent - Held that: - The Tribunal while examining similar set of facts held that the promoter and manager of such property cannot be taxed as real estate agent for the consideration received to substitute the name of the owner / allottee in their records - reliance placed in the case of RIICO Ltd., M/s. Rajasthan State Industrial Development & Investment Corpn. Ltd. Vs. CCE, Jaipur-II [2017 (5) TMI 673 - CESTAT NEW DELHI] - appeal allowed - decided in favor of appellant.
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2018 (2) TMI 1047 - CESTAT NEW DELHI
Supply of tangible goods service - appellant is claiming these are accommodations created at site. The Revenue is claiming that these are tangible goods supplied by the client - Held that: - these bunk houses are in fact created on concrete platform at site with various components and accessories and as such, there is no “supply of bunk-house” to be called supply of tangible goods in the present arrangement. The bunk-house accommodation is created at site based some on permanent concrete base with some dismantable components - there is no identified supply of bunker-houses as considered by the lower authorities - appeal allowed - decided in favor of appellant.
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2018 (2) TMI 1046 - CESTAT NEW DELHI
Real Estate Agent service - service tax was on the charges collected for change of name of the owner of the property in the residential complex originally built and promoted by the appellant - Held that: - the ld. AR categorically submitted that nowhere in the appeal papers, it is clearly brought out that the appellant is owners of the residential complex, which was sold to various buyers and they continue to maintain records of the owners of the property. No such finding has been recorded anywhere - matter remanded to the Original Authority for a fresh re-look mainly to the effect that as to whether there is a change in the facts of the case as pleaded by the ld. Consultant for the appellant - appeal allowed by way of remand.
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2018 (2) TMI 1045 - CESTAT NEW DELHI
Clearing and Forwarding Agency Service - Revenue entertained a view that the appellant is also getting other considerations, which assessee claimed as reimbursement, should also form part of taxable value - Held that: - It is clear from the scope of the agreement that the appellants were in fact acting as Clearing & Forwarding Agent of the client cement company. They were also undertaking various connected activities, which are essentially loading, transporting the cement. The amount attributable to such activities are shown separately in the agreement as reimbursement.
Tribunal in various earlier cases held that when the expenditure incurred by the assessee are in terms of agreement and are actually re-imbursed without any variation, the same shall not form part of the taxable value for C & F agency service.
Appeal allowed - decided in favor of appellant.
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2018 (2) TMI 1044 - CESTAT, BANGALORE
Refund of unutilized CENVAT credit - Information Technology Software Service - Business Auxiliary Service - Held that: - as far as rejection of refund on input services on Management, Maintenance or Repair Service and Management or Business Consultant’s service, is wrong and not sustainable. These two services have been held to be eligible input services as per the decisions cited supra. Moreover, in appellant’s own case, this Tribunal has already held them as eligible input services - the lower authorities will quantify the refund amount after verifying the documents and thereafter, sanction the eligible amount of refund - appeal allowed by way of remand.
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2018 (2) TMI 1043 - CESTAT, BANGALORE
Refund of unutilized CENVAT credit - input services - Renting of Immovable Property Service - Event Management Service - Outdoor Catering service - Air Travel Agency service - denial on account of nexus - Held that: - In view of definition of input service as contained in Rule 2(l) of CENVAT Credit Rules, all these input services on which refund has been denied are related to the provisions of Export of Service - for the subsequent period, the Department itself has allowed the refund on certain services and this Tribunal in the appellant’s own case Commissioner of Service Tax Versus Nvidia Graphics Pvt Ltd [2017 (1) TMI 1081 - CESTAT BANGALORE] has allowed the refund on ‘Renting of Immovable Property service’ and “Event Management Service”.
All these services fall in the definition of “input service” and the appellants are entitled to claim refund subject to verification of documents - appeal allowed by way of remand.
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2018 (2) TMI 1042 - CESTAT NEW DELHI
Management or Business Consultant service - Revenue entertained a view that the appellants were providing taxable service under the category of “Management or Business Consultant” in terms of Section 65(65) read with Section 65(105)(r) of the Finance Act, 1994 - Held that: - respondent–assessee has not provided any advice or consultancy with reference to organisation of M/s RPS Associates or business of M/s RPS Associates. No such role can be inferred from the agreement - demand set aside.
Real Estate Agent service - consideration received to effect the change of name of allottees/ buyer of the property in the project developed by the appellant - Held that: - identical issue decided in the case of CST Vs. Ansal Properties & Infrastructure Ltd. [2017 (9) TMI 1071 - CESTAT NEW DELHI], where it was held that the changes made in the records of the respondent are not causative factors for such sale or purchase, no service tax liability can be confirmed against the respondent under this category.
Appeal dismissed - decided against Revenue.
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2018 (2) TMI 1041 - CESTAT NEW DELHI
Commercial or Industrial Construction Services - construction of cardio vascular centre at Bikaner by M/s. N.S. Associates for M/s. Haldiram Charitable Society - whether commercial activity or otherwise? - Held that: - The provisions of Section 65(25)(b) intended for taxing “Commercial or Industrial Construction Service” is for construction of a new building or civil structure, which is used or to be used primarily for commerce or industry or work intended for commerce or industry. The building now in dispute is a medical facility intended to be used for treatment of public. In fact, the respondent pleaded that the said building has been handed over to the Government for use as a medical facility for common public.
The hospitals and buildings for medical facilities used by the public cannot be considered as civil construction or building intended for use for commerce or industry. Collection of fee, if any, for the usage of the said facility by itself will not make a building as used for commerce or industry.
Appeal dismissed - decided against Revenue.
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2018 (2) TMI 1040 - CESTAT MUMBAI
Refund claim - time limitation - N/N. 14/2016-CE (NT) dated 01/03/2016 - Rule 5 read with N/N. 27/2012-CE (NT) dated 18/06/2012 - Held that: - the period of one year, in case of export of service, shall be reckoned from the date of receipt of foreign exchange and not from any other date - In the admitted fact of this case, the refund claims were filed within one year from the date of receipt of foreign exchange. Therefore, irrespective of whether the amendment provision was brought from 01/03/2016, the refund claim filed by the respondent is well within the period specified under Section 11B - the refund is not time barred.
The issue is covered by the judgement of this Tribunal in the case of Bechtel India Pvt. Ltd. [2013 (7) TMI 490 - CESTAT NEW DELHI], where it was held that In case of export of Services, export is complete only when foreign exchange is received in India. Relevant date of export of services is date of receipt of foreign exchange.
Refund allowed - appeal dismissed - decided against Revenue.
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2018 (2) TMI 1039 - CESTAT MUMBAI
Renting of immovable property services - Penalty - case of appellant is that they have received compensation and not rent from seller - Held that: - Though there was no agreement between the seller and appellant, still in the current circumstances it is seen that the appellant had allowed the seller to use premises for further renting, for a consideration - appellant could have availed the credit of Service Tax already paid by seller - demand upheld - appeal dismissed - decided against appellant.
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2018 (2) TMI 1038 - CESTAT MUMBAI
Business Auxiliary Service - short payment of service tax - tax liability on the Overriding Commission received for cargo bookings undertaken by them for Airlines not discharged - Held that: - the adjudicating authority has not recorded any reasoning for coming to a conclusion as to why he has held that the respondents herein had not undertaken any activity of cargo handing during the period in question and that they did not receive any Overriding commission.
The adjudicating authority should be given an opportunity to come to a conclusion afresh on this point - appeal allowed by way of remand.
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2018 (2) TMI 1037 - CESTAT NEW DELHI
Refund claim - service tax paid on the services used in relation to export - N/N. 41/2007 dated 6.10.2007 - Port services - GTA Service - Overseas Commission - Held that: - as, regards port services, it is not disputed that the appellant has submitted the bills issued by various service provider. The appellant has paid the service tax to the service provider, is also not disputed - when all the documents are produced, refund to be allowed.
GTA service - Held that: - amount of refund claim of ₹ 34,794/- was disallowed for the reason that draw back has been claimed. In the peculiar facts and circumstances, impugned order appears reasonable - refund rejected.
Overseas Commission - Held that: - appellant has not submitted the contract / agreement. Further, the appellant has not submitted the documents evidencing the actual payment to the co commission agent as well as foreign commission agent of the said services - appellant submits that the said documents can be produced to the lower authorities - matter placed on remand for re-examination of documents.
Appeal allowed in part and part matter on remand.
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2018 (2) TMI 1036 - CESTAT, ALLAHABAD
Valuation - Management, Maintenance and Repair service - case of the Revenue was that the appellant/assessee was required to pay the Service Tax on the total contracted value, including consumables and items used in the repair of the motors - Held that: - The appellant/assessee has paid value added tax on goods used in the repairing process. The mere fact that the cost of the various items was shown for the purpose of price variation will not make any difference to the legal position.
Reliance placed in the case of M/s JP TRANSFORMERS Versus COMMISSIONER OF CENTRAL EXCISE AND SERVICE TAX, KANPUR [2014 (7) TMI 115 - CESTAT NEW DELHI], where it was held that on examination of the documentary evidences, we find that the agreements as also the invoices reflected the cost of the materials and the labour separately as also establishes the fact of payment of excise duty, VAT/CST on the said goods sold, it has to be held that no service tax would be leviable on the value of the materials sold.
Appeal allowed - decided in favor of appellant.
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2018 (2) TMI 1035 - CESTAT, BANGALORE
CENVAT credit - input services - sales promotion - Held that: - reliance placed in the case of BHURUKA GASES LTD. Versus COMMISSIONER OF C. EX., CUS. & S.T., BANGALORE-I [2014 (1) TMI 1662 - CESTAT BANGALORE], where it was held that Canvassing and procuring order were in relation to sales promotion and would fall under sales promotion activity - appeal allowed - decided in favor of appellant.
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