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Service Tax - Case Laws
Showing 21 to 40 of 323 Records
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2018 (2) TMI 1813
Refund claim - BL charges and IHC - denial of refund on the ground that the registration number of the service provider is not mentioned in the invoice - N/N. 41/2007, dated 6-10-2007 - Held that:- The service provider has raised an invoice on the appellant showing the services namely BL Charges and IHC which has been explained by the appellant that these charges have been paid by the appellant for Bill of Lading and Inland Haulage charges. Further, in the invoice, the service tax element has been shown and appellant has paid service tax to the service provider.
The refund claim cannot be rejected to the appellant under N/N. 41/20017, as the appellant has received the services for export of goods - Refund allowed - appeal allowed - decided in favor of appellant.
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2018 (2) TMI 1681
Business Support Services - testing and analysis of newly developed drugs on human participants - The claims of the appellant are that these are clinical trial operations, exempted from service tax in terms of N/N. 11/2007-ST dated 01/03/2007 - Held that: - the appellant are directly engaged in the activities of conducting clinical trial studies. They did obtain no objection approval from the concerned drug authorities in India.
These services are in fact provided in terms of agreement with M/s Merck, USA who paid the consideration in convertible foreign exchange. The beneficiary of service as per the terms of the agreement is M/s Merck, USA - it is clear that these services are for delivery and consumption of an entity located outside India.
Appeal allowed - decided in favor of appellant.
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2018 (2) TMI 1680
Business Auxiliary Services - consideration received as a percentage of commission for the services rendered to ICICI Bank - Revenue entertained a view that the appellants provided taxable service under the category of Business Auxiliary Service during the period 01/07/2003 to 31/03/2005 - Held that: - we have no doubt that the appellant did market the services provided by the client bank. It will not be correct to state that the appellant only provided operational assistance in such marketing. No such words were used in the terms of the agreement and in fact the agreement directly refers to the appellant as a service provider “to mark its products (ICICI Bank)” - the appellants are in fact engaged in promotion and marketing activity of the financial products of the client bank.
Time limitation - penalty - Held that: - due to non-payment of tax and non-filing of returns, the Original Authority held against the appellant both on limitation and penalties - time limitation not invocable.
Appeal allowed in part.
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2018 (2) TMI 1679
Levy of service tax - Debit entries made in the books for deployment of Officers - Revenue entertained a view that the appellant is liable to Service Tax on such consideration, on reverse charge basis in terms of Section 66A of the Finance Act, 1994 under the category of ‘manpower recruitment or supply agency service’ - Held that: - the appellant has not received any service to be taxed in the present situation. The debit entries are for maintaining complete financial transaction on behalf of SNC, Canada - it is clear that SNC, Canada cannot be categorized as a manpower recruitment or supply agency while involving deputing their own staff to execute their own contract in India - liability set aside - appeal allowed - decided in favor of appellant.
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2018 (2) TMI 1678
CENVAT credit - service tax paid on installation and commissioning services provided by various service providers at the site on installation of their DG sets - Held that: - in appellant's own case the Division Bench of the Ahmedabad Tribunal in M/s. Veena Industries Limited Versus Commissioner of Central Excise & S.T., Vapi [2016 (1) TMI 161 - CESTAT AHMEDABAD] has taken the view that the appellant is entitled to avail credit of service tax paid by their sub-contractor treating the same as input service.
In the instant case, it is undisputed that the appellant is a provider of taxable service and have provided the same. They are utilising the input service provided by sub-contractors, while providing their output service. Therefore, it is abundantly clear that they are eligible to take cenvat credit of the service tax paid on the input service provided by the sub-contractors - credit allowed.
Appeal allowed - decided in favor of appellant.
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2018 (2) TMI 1677
Refund claim - Section 102(2) of FA 2016 - denial on the ground that refund would result in double benefit to the appellant - Held that: - it is difficult to appreciate how double benefit of the refund allowed u/s 102(2) of Finance Act, 2016 would accrue to the appellant once the amount paid by utilizing CENVAT credit if now refunded to their CENVAT credit account only - appeal allowed - decided in favor of appellant.
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2018 (2) TMI 1676
CENVAT credit - whether the appellant as a service provider, is required to discharge duty/ revers the Cenvat credit on the used capital goods cleared as scrap, during the period 2009-2010 to 2013-2014? - Held that: - appellant had undisputedly cleared scrap of the capital goods used in providing output service during the period 2009-2010 to 2013-2014. Admittedly, the relevant Rule 3(5A) of CCR-2004 has been amended in 2012 and 2013. Prior to amendment to the said Rule effective from 01.4.2012, no liability could be fastened on the scrap of used capital goods by a manufacture or output service provider and after 27.9.2013 when the used capital goods were cleared as scrap, the liability to discharge duty was restricted to manufacturer and not service provider. However during the intervening period i.e. from March to 27.9.2013, the output appellant-service provider was required to pay duty on the transaction value of the scrap of used capital goods - the Appellant is not required to discharge duty on the scrap of capital goods except for the period from March to 27.09.2013.
Penalty - Held that: - appellant being a PSU and frequent changes in law resulted in to non-payment of duty during the relevant period which was later paid before issuance of notice, in my opinion, imposition of penalty is unjustified.
Appeal allowed in part.
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2018 (2) TMI 1617
Penalty - service tax is paid along with interest before issuance of SCN - applicability of Section 73(3) of the FA - Held that: - the appellant had paid the service tax along with interest before issue of show cause notice and accordingly as per Section 73(3) of the Finance Act, 1994, show cause notice should not have been issued as the Revenue has failed to bring on record any material to show that there was intention to evade payment of service tax.
Further, the appellant paid the service tax in spite of the fact that they have not collected the same from their customers - Moreover, the issue relating to construction of complex services has been subject of litigation before various courts and the appellant was justified in not paying the service tax till it was pointed out by the Revenue.
Appeal allowed - decided in favor of appellant.
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2018 (2) TMI 1616
Works contract - benefit of N/N. 1/2006-ST dt. 1.3.2006 - denial on the ground that the documents have not be produced - Held that: - The appellant have produced all the documents in respect of all the parties before Tribunal. A perusal of the said documents shows that many of these are inclusive of the material and therefore are in the nature of works contract in many of the invoices produced VAT has been paid. In these circumstances, the claim of the appellant that the value of the material is included in the contract prices is correct.
The impugned order which essentially confirms on demand on the ground that appellants have not failed to produce the evidence, is set aside - matter remanded to the original authority for fresh adjudication - appeal allowed by way of remand.
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2018 (2) TMI 1615
Penalty u/s 77 and 78 - demand of Interest - The appellant was neither registered with the department nor paid service tax in respect of the services rendered by her - Held that: - the appellants have paid the entire service tax along with interest - also, the appellants have not collected the service tax - Revenue has also not brought any evidence on record showing that the appellants have suppressed the material facts from the department with intention to evade payment of service tax.
Further, the appellants are women from a small village and not much educated and, therefore, were ignorant about the provisions of the Service Tax.
Penalty set aside by invoking section 80 - appeal allowed - decided in favor of appellant.
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2018 (2) TMI 1614
Business Auxiliary Services - Discounts - case of the department is that the said discount is nothing but a sales commission which is liable to service tax under the category of Business Auxiliary Service - Held that: - the transaction between the manufacturer M/s. Gunaji and the appellant is clearly of sale. In the invoice the manufacturer has charged 20% VAT the transaction is clearly at arms length hence sale transaction on principle to principle basis. From the invoice, it is also observed that a trade discount was passed on by the manufacturer to the appellant - As per this undisputed fact once, the transaction is of sale there is no relationship of service provider and service recipient between the manufacturer and the buyer (the present appellant). Accordingly, the discount passed on by the manufacturer to the appellant cannot be construed as a commission and the same is not the subject matter of levy of service tax.
A trading margin cannot be subject matter of levy of service tax.
Appeal allowed - decided in favor of appellant.
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2018 (2) TMI 1568
Penalty u/s 76 and 78 - suppression and evasion of Service Tax - Whether the Tribunal was justified in passing a contradictory order and thereby deleting the penalty only on the ground of non receipt of tax by the assessee from the service receiver?
Held that: - It is observed that the assessee has not received tax from the Rajasthan Housing Board which is a Government Corporation, therefore, the assessee cannot be penalised for non receipt of the tax from Rajasthan Housing Board. He has also not received tax and paid the same with interest, therefore, if penalty is imposed, he would have no other option but to close its business.
The view taken by the tribunal is not only justified but it is the only view which can be taken - appeal dismissed - decided against Revenue.
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2018 (2) TMI 1567
Chartered accountant - liability of service tax - certain considerations received by the appellant for other services (service activities are advice on finance, management, social / political issues, legal matters, negotiations, retainer service etc., to various corporate entities.) rendered by him in his professional capacity as a Chartered Accountant - Revenue entertained a view that such of the above activities like legal assistance, advisory work etc. were taxable under "Management, Consultant" service in terms of Section 65 (65) read with Section 65 (105) (r) of Finance Act, 1994.
Held that: - The guidelines in Code of Ethics framed under the Chartered Accountant Act, 1949 categorically state that Chartered Accountant can practice to render entire range of "Management Consultancy and other Services".
The appellant contested the tax liability for services rendered to Dishnet DSL Ltd. and Essel Mining Industries on the ground that these are more in the nature of legal services - the scope of tax entry for Management Consultant Service covers any service, either directly or indirectly, in connection with management of any organization in any manner and includes any person who renders any advice, consultancy or technical assistance, relating to conceptualising, designing, development, modification, rectification or upgradation of any working system of any organization. We note the ambit of service activity is very wide and not exhaustively listed - all the services rendered by Appellant, now under dispute are covered in such scope of tax entry as above.
Revenue neutrality - extended period of limitation - Held that: - The statutory provisions which are directly relevant to the practicing Chartered Accountant were amended and the very nature of profession of the Appellant will make it clear that there could have been no bonafide belief about non-liability to tax in the present circumstances - extended period rightly invoked.
Appeal dismissed - decided against appellant.
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2018 (2) TMI 1566
Clearing and Forwarding Agents service - activity of lifting and handling of iron & steel products from SAIL, RINL and TATA - non-payment of service tax - Held that: - in the present case, the original authority has not passed the order as per the direction of the remand order of the Commissioner (Appeals). We also find that the original authority has reconfirmed the demand and the penalties without applying its mind as per the direction of the remand order.
Also, the service rendered by the appellant does not fall under the category of Clearing & Forwarding Agent service because they were not receiving the goods nor storing them nor forwarding those to the clients but they are only supervising the loading of the goods at the stockyards of SAIL, RINL and Tisco for which they paid handling charges which does not fall under the category of Clearing & Forward Agent service.
Appeal allowed - decided in favor of appellant.
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2018 (2) TMI 1565
Franchise agreement - perations, Management and Development Agreement (OMDA) with the AAI - Held that: - the issue has came up before the Hon’ble Delhi High Court in the case of Delhi International Airport P. Ltd. & Mumbai International Airport P. Ltd. Versus Union Of India & Ors. [2017 (2) TMI 775 - DELHI HIGH COURT], where it was observed that OMDA does not constitute a franchise in terms of Section 65 (47) of the Finance Act and the transaction between the petitioners and AAI does not constitute a taxable service in terms of section 65 (105 (zze) of the Finance Act, 1994 - appeal allowed - decided in favor of appellant.
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2018 (2) TMI 1564
Penalty u/s 78 - malafide intent - Held that: - the Original Authority has come to a conclusion that there was no mala fide on the part of the respondent - also, Revenue has not raised any ground to challenge the said finding by the Original Authority - appeal dismissed - decided against Revenue.
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2018 (2) TMI 1563
Recovery of dues from legal heir - whether the SCN is validly issued in the name of Bhootpurva Sainik Security & Detective Service (after death of proprietor) and secondly whether the legal heir of late Mr. U.N. Pandey, Mr. Sashi Bhusan Pandey is liable for the dues, if any of the said Bhootpurva Sanik Security & Detective Service?
Held that: - Mr. Shashi Bhushan Pandey, the legal heir of late Mr. U.N. Pandey is not liable for any dues of Bhootpurva Sainik Security & Detective Service, as admittedly show cause notice was issued after the death of his father. So far the dues of the said firm are concerned the Revenue is directed to locate the erstwhile remaining partners of the said firm and enforce recovery from them.
From going through the show cause notice it is not evident whether the same is directed to proprietorship or the partnership concerned. Thus, under these circumstances held no proper service accordingly service that there is no proper authority with the Court below to pass the impugned order.
Appeal allowed - decided in favor of appellant.
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2018 (2) TMI 1498
Non-payment of service tax - Renting of immovable property service - allegation under the SCN is that MIDC has not paid service tax on services charges collected from the holders of the plots situated at various Industrial areas/estates of the MIDC - circular dated 18th December, 2006 bearing No.89/7/2006.
Held that: - the activities performed by sovereign or public authorities under the provisions of law which are in the nature of statutory obligations are covered by clause 2 which provides that the fee collected by such sovereign or public authorities for performing such activities is in the nature of compulsory levy. Only if such authority performs service which is not in the nature of statutory activity and the same is undertaken for a consideration which is not in the nature of statutory fee, service tax would be leviable if the activity undertaken otherwise falls within the ambit of taxable service.
Section 14 of the MID Act provides that the function of the MIDC is not only to develop industrial areas but to establish and manage industrial estates. The role of MIDC is not limited only to establishing industrial estates and allotting the plots or buildings or factory sheds to industrial undertakings. The function and obligation of the MIDC is also to manage and maintain the said industrial estates as provided in Section 14. Therefore, it is the statutory obligation of the MIDC to provide amenities as defined in clause (a) of Section 2 of the MID Act to the industrial estates established by it. Thus, it is the statutory obligation of MIDC to provide and maintain amenities in its Industrial estates such as roads, water supply, street lighting, drainage, etc.
As provided in the circular dated 18th December, 2006, for providing amenities to the plot holders, the service fees or service charges collected by MIDC are obviously in the nature of compulsory levy which is used by MIDC in discharging statutory obligations under Section 14 - even in the OrderinOriginal, there is no finding of fact recorded that the service rendered for which service tax was sought to be levied was not in the nature of statutory obligation.
MIDC is a statutory Corporation which is virtually a wing of the State Government. It discharges several sovereign functions - the Revenue ought not to have compelled MIDC to prefer Appeals before Appellate Tribunal.
Appeal dismissed - decided against appellant.
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2018 (2) TMI 1497
Liability of interest and penalty - payment of tax prior to issuance of SCN - respondent had not reflected the correct value of the services rendered according to the exchange rate prescribed by RBI reference rate - Held that: - the Adjudicating Authority has erred in not demanding the interest on the amount of service tax liability confirmed of ₹ 12,53,138/- - the interest liability arises even if the service tax liability is discharged by the respondent prior to issuance of SCN - the respondent is liable to pay interest on this amount as provided in that Section.
Penalty - Held that: - Adjudicating Authority, though specifically not mentioned in the order, has it seems invoked the provisions of Section 80 to drop penal proceedings. In my view, this is a fit case wherein provisions of Section 80 needs to invoked - penalty set aside.
Appeal allowed in part.
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2018 (2) TMI 1449
Refund of unutilized CENVAT credit - input services - N/N. 17/2009- ST dated 07.07.2009 (as superseded by N/N. 52/2011-ST dated 30.12.2011) - Whether the CESTAT was right in not considering all the grounds of appeal raised before the appeal filed before it and passing order without considering them?
Held that: - We do not think how a factual conspectus, based on which the remand was directed, can be taken as a precedent for the purpose of the present case. Even otherwise, all the judgments and particularly rendered by the Hon'ble Supreme Court have been duly noted and considered by this court.
The tribunal's order is not vitiated by any error of law - appeal dismissed - decided against Revenue.
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