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Service Tax - Case Laws
Showing 161 to 180 of 323 Records
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2018 (2) TMI 938 - CESTAT NEW DELHI
Classification of service - GTA Service - respondent is engaged in carrying the sugarcane from the collection point to its factory by individual truck operators - whether classified under GTA Service or otherwise? - Held that: - an identical issue has came up before the Tribunal in the case of M/s. Ashoka Marbles Pvt. Ltd. Vs. CCE, Jaipur I [2017 (9) TMI 711 - CESTAT NEW DELHI], where it was held that the service of transportation of sugarcane provided by the transporters would not be covered by Section 65(105)(zzp), and hence there will be no Service Tax liability on the appellant sugarcane mills, as they have not received the service from a Goods Transport Agency - demand set aside - appeal dismissed - decided against Revenue.
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2018 (2) TMI 937 - CESTAT, BANGALORE
Business Auxiliary Service - non-payment of service tax - Held that: - the issue already stands decided in favour of the appellant by the Tribunal in the case of CST, Mumbai-I Vs. Sai Service Station Ltd. [2013 (10) TMI 1155 - CESTAT MUMBAI], where it was held that circular issued by MUL which provides certain incentives in respect of cars sold by the assessee respondent. These incentives are in the form of trade discount, no demand - demand set aside - appeal allowed - decided in favor of appellant.
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2018 (2) TMI 936 - CESTAT CHANDIGARH
Banking and Financial Service - appellant is engaged in the financial leasing of equipment and machines under the agreement named as Fixed Period Rental Agreement - Held that: - admittedly there is no transfer of the ownership of the goods at the end of lease, the same does not fall in the category of financial lease and falls in the category of operating lease - demand not sustainable.
Business Auxiliary Service - it was alleged that appellant is providing Business Auxiliary Service for the foreign entity, namely, M/s Canon Singapore Pvt. Ltd. and the services provided do not qualify as export of service under the Export of Service Rules, 2005 - Held that: - The terms of the authorized distributor agreement are clearly on principal to principal basis - for the previous period 2003-2008, the Department has accepted the view that the appellant is carrying out the sales and promotion on their own behalf. Hence, these activities are not covered under Business Auxiliary Service”.
Management, Maintenance and Repair Service - import services - recipient of services - reverse charge mechanism - Held that: - it is difficult to agree with the finding of the Ld. Commissioner (A) that it is not an export of service. Since it will be export of service, in that circumstances too, no service tax is leviable and the demand on this issue is therefore unsustainable.
Appeal allowed - decided in favor of appellant.
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2018 (2) TMI 935 - CESTAT, BANGALORE
Goods Transport Operator services during the period 16/11/1997 to 01/06/1998 - reverse charge mechanism - Department was of the view that the service tax is liable to be paid by appellant as a recipient of service on reverse charge basis, for the above period - Held that: - Hon’ble Supreme Court in the case of CCE, Vadodara-I Vs. Gujarat Carbon & Industries Ltd. [2008 (8) TMI 4 - SUPREME COURT] has held that In respect of GTA, the liability to file return was cast on the appellant’s u/s 71A. The class of persons who come under Section 71A is not brought under the net of Section 73. Therefore, the show cause notices issued u/s 73 are not maintainable - appeal allowed - decided in favor of appellant.
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2018 (2) TMI 934 - CESTAT, BANGALORE
Business Auxiliary Service - non-payment of service tax - Held that: - the issue already stands decided in favour of the appellant by the Tribunal in the case of CST, Mumbai-I Vs. Sai Service Station Ltd. [2013 (10) TMI 1155 - CESTAT MUMBAI], where it was held that circular issued by MUL which provides certain incentives in respect of cars sold by the assessee respondent. These incentives are in the form of trade discount, no demand - demand set aside - appeal allowed - decided in favor of appellant.
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2018 (2) TMI 933 - CESTAT, BANGALORE
Penalty - wrongly availed CENVAT credit, reversed alongwith interest as soon as pointed out - Held that: - reliance placed in the case of COMMISSIONER OF CENTRAL EXCISE AND SERVICE TAX Versus M/s ADECCO FLEXIONE WORKFORCE SOLUTIONS LTD [2011 (9) TMI 114 - KARNATAKA HIGH COURT], where it was held that The assessee has paid both the service tax and interest for delayed payments before issue of show cause notice under the Act. Sub-Sec.(3) of Sec. 73 of the Finance Act, 1994 categorically states, after the payment of service tax and interest is made and the said information is furnished to the authorities, then the authorities shall not serve any notice under Sub-Sec.(1) in respect of the amount so paid.
Keeping in view the conduct of the appellant, it is a fit case for invoking provisions of Section 80 of the Finance Act, 1994 for waiving the penalty which is imposed - appeal allowed - decided in favor of appellant.
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2018 (2) TMI 932 - CESTAT, BANGALORE
Condonation of delay of 256 days in filing the appeal before the Commissioner(Appeals) - Held that: - as per Section 85(3) which is applicable during the relevant period, which provides that an appeal shall be presented within three months from the date of receipt of the decision or order of the authority, relating to service tax, interest or penalty - Further the proviso to this section provides that the Commissioner of Central Excise(Appeals) may, if he is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the aforesaid period of 3 months, allow it to be presented within a further period of three months.
In this case, even after allowing the condonation of 3 months, still the appeal is beyond the time and therefore the Commissioner(Appeals) has rightly dismissed the appeal on limitation.
Appeal dismissed.
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2018 (2) TMI 931 - CESTAT, BANGALORE
Levy of service tax - telecommunication services - Department was of the view that such inter connection usage charges are leviable to service tax under the category of ‘leased circuits’ - Held that: - the leviability of service tax on inter connection usage charges has been the subject matter of various appeals which stand decided by the Tribunal in favour of the telecom service providers - In the case of Bharti Airtel Ltd. Vs. CST, Ahmedabad [2007 (3) TMI 246 - CESTAT AHMEDABAD], where it was held that CBEC Circular No. 91/2/ 2007-S.T. dated 12-3-2007 clarified that the inter-connection usage charges will be chargeable to duty from the date of the Finance Bill of 2007 becomes an Act and for the earlier period such charges will not be subject to service tax - appeal allowed - decided in favor of appellant.
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2018 (2) TMI 930 - CESTAT, BANGALORE
Stay of impugned order - Refund of service tax paid on certain construction activities carried out by them during the period 01.04.2015 to 29.02.2016 - Held that: - The learned Commissioner (Appeals), vide the impugned order, has remanded the matter to the original authority for fresh adjudication of the refund claim filed by the respondent. Inasmuch as this is only remand, we find no reason to interfere with the same. The original authority is directed to pass de novo orders in respect of the refund claim filed by respondent on the basis of law without getting influenced by the observations made in the impugned order - appeal disposed off.
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2018 (2) TMI 929 - CESTAT HYDERABAD
CENVAT credit - angles, channels and beams etc., used to erect the towers and pre-fabricated buildings on which transmission equipments were installed - Held that: - identical issue has been decided by this Bench in M/s. Bharat Sanchar Nigam Ltd., Versus CCE, C & ST, Hyderabad-III [2017 (2) TMI 439 - CESTAT HYDERABAD], wherein the Bench on merits held against BSNL, holding that Cenvat Credit is not to be allowed on the angles, channels and beams etc., Which are used for fabrications of transmission towers it also held that demand beyond the period of limitation from the date of Show Cause Notice, is unsustainable and penalties are not warranted - demand within the limitation period from the date of issuance of Show Cause Notice is upheld with interest and penalties are set aside - appeal disposed off.
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2018 (2) TMI 928 - CESTAT HYDERABAD
GTA service - N/N. 35/2004-ST, dated 03.12.2004 - Department took the view that notification exemption is not available to appellant as there was no evidence to show that the conditions of the notification were fulfilled - Held that: - Notification No. 32/2004-ST restricted the service tax liability on taxable value in respect of services provided by Goods Transport Agency (GTA) to 25% of the gross amount charged. This notification was rescinded w.e.f. 01.03.2006 by notification No. 2/2006-ST, dated 01.03.2006. However, the exemption allowing for discharge of service tax liability only on 25% of the gross amount charged by the GTA was continued by notification No. 01/2006-ST, dated 01.03.2006, without any conditions on declaration etc.
CBEC and in particular the circular No. 137/154/2008-CD.4, dated 21.08.2008, clarified 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 do not sustain.
Appeal allowed - decided in favor of appellant.
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2018 (2) TMI 927 - CESTAT, BANGALORE
100% EOU - Refund claim - Renting of Immovable Property for parking space - Supply of Tangible Goods for Cafeteria - rejection on the ground that the services for which they filed refund claim are not input services as per Rule 2(l) of the CCR 2004 - Held that: - the Renting of Immovable Property for parking space is a part of the output service as without that space the persons visit to the office of the appellant cannot reach to the office and for that purpose, the parking space is required. Therefore, these parking space is necessary for providing the output services of the appellant - refund allowed.
Supply of Tangible Goods for Cafeteria - Held that: - the employees of an output service provider are required to avail the services of the cafeteria which is essential for the employees. If cafeteria services have not been provided to the employees, the efficiency of the employees shall come down as they have to go outside the premises for cafeteria and they will not able to work in their full capacity - refund allowed.
Also, refund claim cannot be denied merely on the premise that services in question on which cenvat credit remained unutilized in cenvat credit are not ‘Input Services’.
Appeal allowed - decided in favor of appellant.
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2018 (2) TMI 926 - CESTAT, BANGALORE
CENVAT credit - input/input services - Revenue is of the view that as the goods exported by the respondent is an exempted goods, therefore as per Rule 6(1) of the Cenvat Credit Rules 2004, they are not entitled to cenvat credit on input/input services used for manufacturing of exempted goods - Held that: - identical issue decided in the case of JOLLY BOARD LTD Versus COMMISSIONER OF CENTRAL EXCISE [2014 (3) TMI 124 - CESTAT MUMBAI], where it was held that CENVAT credit used in the manufacture of final product being exported irrespective of the fact that final product are otherwise exempted by provisions of Rule 6(6)(v) of the CENVAT Credit Rules, 2004 are applicable - refund allowed - appeal dismissed - decided against Revenue.
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2018 (2) TMI 925 - CESTAT, BANGALORE
Refund of unutilized CENVAT credit - various input services used for export of Information Technology Software Services - Held that: - at the time of availment of cenvat credit it was not disputed by the Revenue that these services are not ‘input services’. In the circumstances, at the time of claiming the refund claim, cenvat credit cannot be denied - refund allowed - decided in favor of appellant.
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2018 (2) TMI 924 - CESTAT, BANGALORE
Refund claim - input/input services - Revenue is of the view that as the goods exported by the respondent is an exempted goods, therefore as per Rule 6(1) of the Cenvat Credit Rules 2004, they are not entitled to cenvat credit on input/input services used for manufacturing of exempted goods - Held that: - identical issue decided in the case of JOLLY BOARD LTD Versus COMMISSIONER OF CENTRAL EXCISE [2014 (3) TMI 124 - CESTAT MUMBAI], where it was held that CENVAT credit used in the manufacture of final product being exported irrespective of the fact that final product are otherwise exempted by provisions of Rule 6(6)(v) of the CENVAT Credit Rules, 2004 are applicable - refund allowed - appeal dismissed - decided against Revenue.
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2018 (2) TMI 923 - CESTAT AHMEDABAD
Management Consultant Service to the Joint venture company - non-payment of service tax - Held that: - it is difficult to appreciate that preparation of statistical report by the appellant could be construed as providing any service in connection with the management of the company, hence, would come under the scope of aforesaid definition of management consultant - on merit the levy of Service Tax on the services provided by the Appellant cannot be sustainable - ancillary issues not dealt with - appeal allowed - decided in favor of appellant.
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2018 (2) TMI 922 - SC ORDER
Refund of service tax paid inadvertently on non-taxable services - the decision in the case of Commissioner of Central Excise And Service Tax (LTU) , Mumbai Versus The Shipping Corporation of India Ltd. [2016 (8) TMI 852 - CESTAT MUMBAI] - Held that: - the decision in the above case upheld - appeal dismissed.
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2018 (2) TMI 845 - MADRAS HIGH COURT
Penalty - Advertising Services - non-payment of tax within due dates - payment of tax dues within interest before issuance of SCN - Whether the CESTAT is correct in holding that penalty u/s 76 & 77 of the Service Tax Act is not leviable when part of the service tax due and the interest is paid before the issuance of show cause notice?
Held that: - Perusal of the material on record discloses that interest payable on the belated payment of service tax was ₹ 12,63,324/- and that even prior to issuance of the show cause notice, assessee/respondent paid interest amount of ₹ 5,23,151/-. The remaining amount of ₹ 7,40,163/- had been paid on 03.11.2009 immediately on receipt of show cause notice dated 20.10.2009, i.e., within 13 days.
As per Section 80 of the Finance Act, 1994, notwithstanding anything contained in the provisions of Section 77 or 1st proviso to Section 78, no penalty shall be imposable on the assessee for any failure referred to in the said provisions, if the assessee proves that there was reasonable cause for the said failure.
On belated payment, the assessee has substantiated reasonable cause for the failure in payment of service tax, within the stipulated time and hence, he is entitled to the benefit under Section 80 of the Finance Act.
There is no manifest error is committed by the CESTAT, Madras - appeal dismissed - decided against Revenue.
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2018 (2) TMI 844 - CESTAT NEW DELHI
Classification of taxable service - works contract service - effective date of tax liability - Held that: - the services rendered by the appellant, are of composite in nature involving transfer of goods as well as provision of service. As such, the tax liability on such contracts will arise only w.e.f. 1.6.2007 - the works contract service shall be liable to tax only w.e.f. 1.6.2007.
Whether or not the appellant discharged service tax correctly by availing the composition scheme as per 2007 Rules? - Held that: - the appellants discharged service tax at the composition rates w.e.f. 1.6.2007 and claimed to have filed regular returns indicating the availment of such scheme by them - there is no tax liability on such work contract prior to 1.6.2007 - the tax liability fixed on an ongoing contract can arise only w.e.f. 1.6.2007 and the appellant can avail the composition scheme when such tax liability arises.
Penalties imposed on the demands raised for the period 1.10.2009 to 30.09.2010 - interest - Held that: - Considering the question of interpretation and judicial pronouncements, which came much after the impugned order, we are inclined to set aside the penalties imposed on the appellant - Interest wherever applicable on delayed payment of service tax is statutorily requirement and has to be complied by the appellant.
Appeal allowed in part.
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2018 (2) TMI 843 - CESTAT NEW DELHI
Business Auxiliary Service - appellant entered into one such agreement with IGL for giving facility of selling CNG through their outlets; accounting and selling of the said CNG - Revenue entertained view that the considerations received by the appellant from IGL are in the nature of commission for rendering Business Auxiliary Service in terms of Section 65(19) of the Finance Act, 1994.
Held that: - similar set of facts has been a subject matter of decisions of this Tribunal in the case of Indian Oil Corporation Versus CST, Delhi-II [2017 (12) TMI 20 - CESTAT NEW DELHI], where it was held that service tax cannot be demanded under the category of “Business Auxiliary Service” as the gas has been sold by IGL to IOCL on principal to principal basis.
The transaction between IGL and the appellant are on principal to principal basis. The appellant has been prohibited from holding himself as an agent of IGL. The agreement categorically states that the same is on principal to principal basis.
The service tax liability under BAS cannot be sustained against the appellant - appeal allowed - decided in favor of appellant.
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