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Service Tax - Case Laws
Showing 141 to 160 of 323 Records
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2018 (2) TMI 1034 - CESTAT, BANGALORE
100% EOU - service tax and education cess on the royalty paid - intellectual property service - services of temporary transfer of technical know-how - the sole contention of the Department is that such technical know-how is recognised under international treaties to which India is a signatory and hence it is leviable to tax in India - Held that: - as per Article 253 of the Constitution of India, for implementing any treaty agreement or convention with any country or any decision made at international conference etc., there should be a municipal legislation enacted for giving effect to such international agreement or treaties - also, the show-cause notice does not clearly state the nature of know-how which the appellant has availed from his foreign company.
Demand not sustainable and is set aside - appeal allowed - decided in favor of appellant.
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2018 (2) TMI 1033 - CESTAT, BANGALORE
Adjustment of excess service tax paid - Held that: - the issue is no longer res integra and is decided in favor of the respondent in the case of Jubilant Organosys Ltd. [2014 (10) TMI 138 - CESTAT NEW DELHI], where it was held that the adjustments of service tax was allowed in terms of Rule 6(4A) of Service Tax Rules, under similar circumstances - appeal dismissed - decided against Revenue.
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2018 (2) TMI 1032 - CESTAT, BANGALORE
Voluntary Compliance Entitlement Scheme - declaration under VCES rejected alleging that in the adjudication for the period up to 2007-08, there was a demand of ₹ 1,83,849/- under Works Contract Service and hence the appellant suffered from disqualification under second proviso to Section 106(1) - Held that: - the VCES scheme is part and parcel of Finance Act, 1994 and all the provisions of the Finance Act are applicable to the scheme to the extent of specifically excluded - the appellant attracts disqualification because demand was confirmed against him under the WCS for the period 2007-08 which clearly covered under Section 106(2) of the Finance Act, 2013 - appeal dismissed - decided against appellant.
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2018 (2) TMI 1031 - CESTAT, BANGALORE
Consulting engineer service - Extended period of limitation - whether the Department was entitled to issue show-cause notice dt. 21/04/2005 for demand of service tax, by invoking the longer time limit under Section 73 of the Finance Act, 1994? - Held that: - the Department had in fact issued 5 show-cause notices which covered some of period covered in the present proceedings. From the earlier SCN and the corresponding order of the original authority, it is found that the Department, in fact, in addition to alleging non-filinng of ST3 returns had also assessed the liability of the respondent for a part of the period which is covered in the present proceeding - the Department was precluded from issuing another SCN invoking the suppression clause.
Appeal dismissed - decided against Revenue.
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2018 (2) TMI 1030 - CESTAT, BANGALORE
C&F Services - recipient of service - reverse charge mechanism - Held that: - It is not in dispute that the show cause notice has been issued to all the appellants for recovery of service tax under Section 73 of the Finance Act, 1994. The issue of demand of service tax under Section 73 was adjudicated and demands confirmed relying upon retrospective amendments to Finance Act, 1994.
A Division Bench of this Tribunal in the case of L.H. Sugar Factory [2004 (1) TMI 111 - CESTAT, NEW DELHI] in an identical issue ruled in favour of the assessee.
Appeal allowed - decided in favor of appellant.
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2018 (2) TMI 1029 - CESTAT CHENNAI
Condonation of delay of 1557 days in filing the appeal - non-service of notice u/s 37C of the CEA 1994 read with Section 83 of the FA 1994 - Held that: - impugned order has been served on the employee Shri Sudhir Niranjanlal Sharma on 18.1.2013 who has furnished an acknowledgement with regard to receipt of the OIO - the delay on the part of the appellant is hit by the Doctrine of Laches - the explanation for the inordinate delay given by the appellant is not convincing or persuasive.
Delay being huge and unreasonable as well as appellant not having been able to put forward sufficient cause for condonation of the same - COD application dismissed.
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2018 (2) TMI 1028 - CESTAT CHENNAI
Refund claim - Renting of Immovable Property Services - Maintenance or Repair Services - Delegate (Commercial Training or Coaching) - Maintenance or Repair Service - denial on the ground that the entire credit availed on the input services could not be utilised by them being an E.O.U - Held that: - in the appellant's own case M/s. Integra Software Services Pvt. Ltd. Versus CCE & ST, Pondicherry [2017 (8) TMI 1053 - CESTAT CHENNAI], the issue whether the appellant is eligible for credit on Renting of Immovable Property Service for the service tax paid under reverse charge mechanism by the company has been discussed and analysed - the issue has to be remanded to the adjudicating authority who shall consider facts of the case - matter on remand.
With regard to the Maintenance or Repair Services, the learned consultant has submitted that the invoices pertain to Housekeeping Services and the appellants have paid service tax under this category - Held that: - By mistake, they have noted in their ledger that the service tax has been paid under Maintenance or Repair Services. This aspect also requires verification - matter on remand.
The credit/refund in respect of Management Consultant Services and Delegate Fees having decided in favour of the appellants in the case of M/s. Integra Software Services Pvt. Ltd. Versus CCE & ST, Pondicherry [2017 (8) TMI 1053 - CESTAT CHENNAI] - refund allowed.
Partly decided in favor of appellant and part matter on remand.
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2018 (2) TMI 1027 - CESTAT HYDERABAD
Whether appellant herein engaged in operations and maintenance of power plants, as per the agreements entered with GVK industries Ltd., at various locations is liable to be taxed? - the contract is for operation and maintenance of the power plant to produce electricity and transmit it to the power grid. Appellants are challenging orders on two grounds i.e. production of electricity is manufacture of goods and that contracts cannot be vivisected and amounts are not received for maintenance and repair but for running of power plant effectively.
Held that: - the amounts which are received by the appellant as consideration, are for running of the power plant and not only for maintenance and repair charges. The agreement is for operation of power plant for 24 x 7 in pursuance of such agreement, appellant prepares a detailed plan as to how to conduct maintenance of the power plant, repairs of various machinery and submits the plan to the power plant owners, in order to, give them advance intimation of the planned shutdown of the power plant - this maintenance under taken by the appellant is in order to keep the power plant in the working conditions; there is no interruption in power generation and transmission to the power grid.
Similar issue came up before this Bench in the case CLP Power India Ltd., [2016 (11) TMI 645 - CESTAT MUMBAI] wherein the Bench after referring to various case laws and producing excerpts from them, concluded operation of power plant is not taxable under maintenance and repair services - decided in favor of appellant.
Manufacture - whether Generation of the electricity is a manufactured product? - Held that: - the Tribunal in the case of NTPC Sail Power Co. Pvt Ltd., [2009 (5) TMI 59 - CESTAT, KOLKATA] have clearly held so and no other contrary decision is brought to our notice - decided in favor of appellant.
Appeal allowed - decided in favor of appellant.
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2018 (2) TMI 1026 - CESTAT HYDERABAD
Benefit of N/N. 32/2004-ST, dated 03.12.2004 - C&F and logistic services - Department took the view that exemption would not be available to the appellant as there was no evidence to show that the conditions specified in the notification were fulfilled - Held that: - circular No. 137/154/2008-CD.4, dated 21.08.2008, clarified that it is but evident that even for the past cases before the extension of benefit of 75%, abatement to GTA services unconditionally (by notification No. 13/2008, dated 1.3.2008), the benefit of such abatement will be available to the appellant without requirement of any specific endorsement on every consignment note, but merely on general declaration from GTA - In the instant case, from the facts it is seen that the appellants have obtained such undertaking letters from the concerned transporters. This being so, the confirmation of demand is in contradiction to the clarifications of CBEC themselves vide circular dated 21.08.2008 - demand set aside - appeal allowed - decided in favor of appellant.
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2018 (2) TMI 1025 - CESTAT HYDERABAD
Valuation - GTA service - abatement - N/N. 32/2004-ST, dated 03.12.2004 - Department took the view that there is no evidence that credit of duty paid on inputs or capital goods, has not been taken by the Goods Transport Agency under N/N. 12/2003-ST, dated 20.06.2003 - Held that: - from circular No. 137/154/2008-CD.4, dated 21.08.2008, it is but evident that even for the past cases before the extension of benefit of 75%, abatement to GTA services unconditionally (by notification No. 13/2008, dated 1.3.2008), the benefit of such abatement will be available to the appellant without requirement of any specific endorsement on every consignment note, but merely on general declaration from GTA.
In the instant case, from the facts it is seen that the appellants have obtained such undertaking letters from concerned transporters. This being so, the confirmation of demand is in contradiction to the clarifications of CBEC themselves vide circular dated 21.08.2008 - demand set aside.
Appeal allowed - decided in favor of appellant.
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2018 (2) TMI 1024 - CESTAT HYDERABAD
Business of selling residential houses and apartments - levy of service tax - case of appellant is that they are contesting the issue only on the confirmation of the demands against them of ₹ 8.26 lakhs approximately on the ground that the said demand has been confirmed for the period post December 2012 for which no show-cause notices has been issued.
Held that: - it is found that demand of approximately ₹ 7.48 lakhs has not raised in the show-cause notice issued to the appellant - the demand of approximately ₹ 7.48 lakhs which arises in respect of these two agreements entered post December 2012, are unsustainable as there is no demands which have been raised in the show-cause notice. To that extent the assessee/appellants appeal is allowed.
Demand of ₹ 1.08 lakhs for the period in question up to December 2012 - interest - penalty - Held that: - the said demand is liable to be upheld as there is dispute that the tax liability needs to be discharged on the said amounts - Since the issue involved in these cases is regarding the interpretation of the provisions of Section 65(105). Hence no penalty is required to be discharged but the interest liability on the said amount of ₹ 1.08 lakhs needs to be discharged by the main appellant - interest upheld - penalty set aside.
Appeal allowed in part.
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2018 (2) TMI 950 - CESTAT, BANGALORE
Refund of unutilized CENVAT credit - input services - Rule 5 of Cenvat Credit Rules, 2004 - Held that: - in respondent’s own case M/s. Apotex Pharmachem India Pvt. Limited Versus Commissioner of Central Excise, Customs and Service Tax, Bangalore [2017 (2) TMI 54 - CESTAT BANGALORE] this Tribunal held that these services are ‘Input Services’ and respondent is entitled for refund claim filed by them - appeal dismissed - decided against Revenue.
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2018 (2) TMI 946 - CESTAT BANGALORE
Refund claim - time limit - Section 11B of the Central Excise Act, 1944 - whether the time limit prescribed under Section 11B in respect of filing of refund claims is to be applied from the date of receipt of payment for export of services or can be considered from the end of the quarter in which such payments have been received?
Held that: - there is a specific condition that the refund claims are required to be filed within the period specified under Section 11B. Consequently, completely ignoring the provisions of Section 11B may not be appropriate.
The definition of relevant date in Section 11B does not specifically cover the case of export of services. Hence, it is necessary to interpret the provisions constructively so as to give it meaning such that the objective of the provisions; i.e. to grant refund of unutilized CENVAT credit, is facilitated. By reference to the Service Tax Rules, 1994 as well as the successor provisions i.e. the Export of Service Rules, 2005, we note that export of services is completed only with receipt of the consideration in foreign exchange. Consequently, the date of Foreign Inward Remittance Certificate (FIRC) is definitely relevant.
In respect of export of services, the relevant date for purposes of deciding the time limit for consideration of refund claims under Rule 5 of the CCR may be taken as the end of the quarter in which the FIRC is received, in cases where the refund claims are filed on a quarterly basis.
The matter reverted to the regular Benches for deciding the respective appeals.
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2018 (2) TMI 945 - CESTAT MUMBAI
Valuation - includibility - freight charges and equipment rental charges etc. - The department was of the view that as per Rule 5(1) of Service Tax (Determination of Value) Rules 2006, any expenditure or cost which are incurred by the service provider in the course of providing taxable services are to be treated as consideration and has to be included in the value of taxable services for levy of service tax - sub-rule 1 of Rule 5 of Service Tax (Determination of Value) Rules 2006
Held that: - The applicability of Rule 5 (1) was considered by the Hon’ble High Court of Delhi in the case of Intercontinental Consultants and Technocrats Pvt. Ltd. [2012 (12) TMI 150 - DELHI HIGH COURT]. The Hon’ble High Court held that the inclusion of costs and expenditures in the gross taxable value by making provision in the Rules is repugnant to Section 66 and 77 of the Finance Act and to that extent is ultra vires.
Demand do not sustain - appeal allowed - decided in favor of appellant.
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2018 (2) TMI 944 - CESTAT CHENNAI
Valuation - includibility - reimbursement of certain expenditure incurred on behalf of the clients - Held that: - Regarding exclusion of reimbursement expenses, it is clear that the said exclusion can be allowed on satisfactory proof of documents specifically to the effect that these are on actual basis as per the arrangement between the client and the appellant. This can be easily verified with the supporting documents to be submitted by the appellants - Admittedly, the documents were not fully available at the time of proceedings before the original authority. Now, the appellant assures that all the required documents will be submitted for the scrutiny of the original authority to his satisfaction.
The matter is remanded back to the original authority for a fresh consideration - appeal allowed by way of remand.
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2018 (2) TMI 943 - CESTAT HYDERABAD
Benefit of reduced penalty u/s 78 - non-discharge of service tax - extended period of limitation - Held that: - once the demand of service tax liability for the period 01.10.2005 to 31.07.2008 is demanded under the show cause notice dated 17.02.2011, it is obviously done by invoking the extended period. If there is a demand by invoking extended period for the payment of service tax, in my view, the provisions of Section 78 will have to be followed, giving relief of payment of reduced penalty - Adjudicating authority will have to requantify the amount of service tax liability and appropriate the amount by the appellant towards tax liability and interest and extend benefit pay of pending 25% of the amount of such requantified amount of tax liability, and also appropriate the amount which has been paid by the respondent towards penalty.
Appeal disposed off.
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2018 (2) TMI 942 - CESTAT HYDERABAD
Classification of services - services of loading of coal at railway goods shed, transporting & unloading same at the premises - whether the activity under taken by the respondent would merit classification under cargo handling service or otherwise? - Held that: - the respondent was required to do the transportation of coal from the railway head to the factory premises shifting of various materials with the premises - the first appellate authority has correctly Interpreted the clauses of agreement entered by respondent - appeal dismissed - decided against appellant.
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2018 (2) TMI 941 - CESTAT HYDERABAD
CENVAT credit - modernization, renovation or repairs of premises - Held that: - there is no dispute as to the services were availed by the appellant, in respect of modernization, renovation or repairs of premises - The First Appellate Authority has also recorded that these services are covered under inclusive part of the definition. If these services are undisputedly, used for modernization, renovation or repair of premises the question of denying the CENVAT credit of the service tax paid on the disputed services does not arise - Both the lower authorities have erred in rejecting the claim of appellant that they are eligible for CENVAT credit an amount of ₹ 30,44,044/-.
Appeal disposed off.
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2018 (2) TMI 940 - CESTAT HYDERABAD
CENVAT credit - Commission agent services - common inputs and input services which are used to utilise for trading activity - Held that: - in respect of service tax paid on Commission Agent Services, appellant is not eligible to avail cenvat credit - any commission paid for procurement of business cannot be considered is in relation to business activity and hence held to be ineligible - credit not allowed.
CENVAT credit - trading activity being exempted services - Held that: - Since the issue is settled that trading activity is an exempted service, appellant needs to follow the rule 6(3A) of Cenvat Credit Rules, 2004 and reverse the cenvat credit availed on trading activity - matter needs verification of the reversal done is in accordance with the law or otherwise.
Decided partly against appellant and part matter on remand.
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2018 (2) TMI 939 - CESTAT MUMBAI
Classification of services - cargo handling services or transportation services? - appellants have argued that loading and unloading done is a kind of self-service necessary to undertake the service of transportation undertaken by them.
Held that: - Loading in the riverbed is not a simple activity of loading as the sand has to be mined using an excavator or other machine. The location of riverbed is not fixed. The loading in the stockyard is, however, simple activity of loading.
The contract describes it to be a contract for excavation from riverbed, transportation from riverbed to warehouse and transportation from warehouse to bunker. Rates have been quoted for both on per MT basis but the rate changes with the distance between the origin and destination. In these circumstances it is to be examined if the activity is primarily an activity of transportation or of cargo handling.
There is no doubt that the activity of removing/excavating sand from the riverbed amounts to mining activity. However for the period in dispute mining was not a taxable service. In any case, the activity of movement of sand from warehouse to bunker cannot be considered as mining activity. From the terms of the contract it is apparent that the prime purpose of the contract is to bring the sand from the riverbed/ warehouse to the bunker. The loading or unloading are merely necessary requirements to complete activity of movement of the sand.
The contract is primarily intended for the purpose of transportation of sand and the activity of loading/unloading is merely incidental. No tax under the head of Cargo Handling Service can be levied in these circumstances.
Appeal allowed - decided in favor of appellant.
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