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Service Tax - Case Laws
Showing 281 to 300 of 323 Records
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2018 (2) TMI 231 - CESTAT CHENNAI
100% EOU - Refund of unutilized CENVAT credit - various input services - management consultant service - photography service - interior decoration service - supply of tangible goods services - renting of immovable property service - denial on the ground of nexus - Held that: - The services except insurance services and transport of goods by road services are covered by various decisions holding that such services can be considered to have nexus with the output services provided by the assessee. Further, the definition of ‘input service’ with regard to output service merely states that input services means any service used by a provider of output services for providing output service. The department has not been able to produce any evidence to show that the subject services have not been used by the assessee. The definition does not qualify the use of input services by a service provider by the words 'directly or indirectly, in or in relation to output service'. Thus, the services would qualify as an input service if it is used by a provider of output service for providing the output service.
Refund is also disallowed for ₹ 7,338/- alleging that the appellant has availed credit on debit notes instead of invoices - Held that: - In Ad-Manum Packagings Pvt. Ltd. Vs. Commissioner of Central Excise, Indore [2017 (4) TMI 209 - CESTAT NEW DELHI], similar issue came for consideration wherein the Tribunal held that debit notes are valid documents for availing credit - the issue whether credit is admissible on debit notes has to be relooked by the adjudicating authority - matter on remand.
Another ground for rejection of refund is that there is difference in the amount shown in ST3 returns and the refund claim with respect to total credit availed by the appellant - Held that: - It is explained by the Id. consultant that the appellant could not revise the ST-3 returns after coming to know that the credit availed is shown incorrectly in the ST-3 returns filed. This aspect also requires verification as to whether the appellant has correctly calculated the total credit for which the refund claim has been filed - matter on remand.
CENVAT credit - air travel agency service - Held that: - In the impugned order dated 1.9.2016, the Commissioner (Appeals) has observed that the said services were availed in connection with the business activity of providing output services by the employees. Therefore, I do not find any ground to interfere with the order passed by the Commissioner (Appeals) and the appeal filed by the department is dismissed.
Appeal allowed in part and part matter on remand.
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2018 (2) TMI 230 - CESTAT AHMEDABAD
Consultancy service - sub-contract - whether the Appellant herein is required to discharge the service tax liability during the period April 2008 to September 2008 (actually November 2005 to August 2007) or otherwise? - Held that: - if the main contractor has paid the service tax on the entire contract value which also include the value of the contract as given to sub-contractor, there is no necessity to pay the service tax by the sub-contractor - M/s Louis Berger was awarded a contract for civil work of Mumbai Urban Transport Project Road Network; it is undisputed that M/s Louis Berger has discharged the applicable service tax liability on the amount of contract awarded to them - demand set aside - appeal allowed - decided in favor of appellant.
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2018 (2) TMI 229 - CESTAT NEW DELHI
Classification of services - activity of installation of wired line and cables - whether classified under Commissioning and Installation Service or otherwise? - Held that: - The basic activity of the appellant is installation of wiring and wire line, broad band and cables. The activities undertaken pursuant to the agreement dated 1.4.2003 will not fall under the category of “installation of land, machinery, equipment as contained in the definition under Section 65(39a) of Finance Act, 1994 - Since the activity of the appellant cannot be categorised under simple installation of equipment, and more precisely falls under installation of wiring or fittings as contained in the amended definition with effect from 16.6.2005, the classification should be appropriately made under the amended definition effective from 16.6.2005.
Circular No. B-I/6/2005-TRU, dated 27.7.2005, clarifies that scope of the taxable service has been expanded by including specified services therein. Since the scope of the taxable service was expanded and in view of the fact that the activity undertaken by the appellant is more specific to wirings or fittings of the equipment, such taxable service should be covered under the amended provisions of erection, commissioning and installation service with effect from 16.6.2005.
Appeal allowed - decided in favor of appellant.
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2018 (2) TMI 228 - CESTAT ALLAHABAD
Refund claim - Commercial or Industrial Construction Services - activity/service of “Flash Butt Welding of Railway Joint of Pipes/Railway Line on Railway Contract - Held that: - whatever Service Tax has been paid by the respondent and the same has been borne by the respondent only - it is an admitted fact that no Service Tax is payable on the service provided to the railways. In that circumstance, whatever Service Tax paid by the respondent, is not a Service Tax and the same is refundable to the respondent - refund allowed - appeal dismissed - decided against Revenue.
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2018 (2) TMI 227 - CESTAT NEW DELHI
Rectification of mistake - the penalties under Section 76 and 78 were distinguished but this fact was not brought to the notice of the Tribunal - Held that: - It may be mentioned that nobody can take advantage of own wrongs as per the maxim COMMODUM EX INJURIA SUA MEMO HABERE DEBET - when it is adverse to the interest of the Counsel only RoM has been filed which is not desirable - ROM application dismissed.
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2018 (2) TMI 226 - CESTAT BANGALORE
Liability of service tax - total value of extended warranty coupon, sold by the appellant to the car owners - Revenue considered this as a part of their taxable activity under the heading “Authorized Service Station” of Motor Cars - Held that: - the appellant is not providing service of authorized station to Maruti, as a customer. Services by authorized service station is always to a customer who brings in his vehicle for any service or repair in any manner. It is apparent that it is not Maruti who is bringing in any vehicle any service or repair as a customer, so that the activity can be brought under Section 65(105) (zo). The services, if any, rendered by the appellant to Maruti as a client in the present arrangement cannot be covered in the above mentioned tax entry - appeal allowed - decided in favor of appellant.
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2018 (2) TMI 225 - CESTAT AHMEDABAD
Refund of penalty - applicability of Section 11B of the CEA, 1944 - Held that: - The penalty is crystallized only after an order is passed by the appropriate authority imposing penalty for failure to pay service taxobserving the reason for failure in discharging the service tax and role of the appellant - In the present case, the said amount was suo moto deposited by the respondent while discharging the service tax and interest, which in my view, cannot be designated or termed as penalty. At best, it could be considered as an extra payment made at the time of discharging the service tax liability with interest - appeal dismissed - decided against Revenue.
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2018 (2) TMI 224 - CESTAT NEW DELHI
Cargo Handling Service - demand of tax with interest and penalties - Held that: - the scope of work mentioned threin relates to transportation of the goods - In view of the fact that the scope of work as per the agreement is only confined to transportation of goods and there is no element of Cargo Handling Service, the activities undertaken by the appellant will not be covered under the scope and ambit of Cargo Handling Service - appeal allowed - decided in favor of appellant.
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2018 (2) TMI 156 - CESTAT CHENNAI
Banking and Other Financial Services - the assessee raised funds through issue of Foreign Currency Convertible Bonds (FCCB) in capital markets through overseas lead arrrangers to whom they paid charges in the form of upfront fee, management fee, commitment fee, underwriting fee, out-of-pocket expense, legal fee etc. - period involved is after 18.4.2006 - reverse charge mechanism - Held that: - The Tribunal in assessee's own case M/s. Sakthi Sugars Ltd Versus Commissioner of Central Excise, Salem [2017 (9) TMI 30 - CESTAT CHENNAI], has held that the demand on said legal fees cannot sustain for the reason such charges will not fall under Banking and Financial services and that such service has become taxable only with effect from 1.9.2009 - the demand on legal fees requires to be set aside.
For the limited purpose of requantification of the demand, eliminating legal fees, the matter is remanded to the original authority - appeal allowed by way of remand.
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2018 (2) TMI 155 - CESTAT MUMBAI
Extended period of limitation - the appellant had already discharged duty liability for the period 24.6.2005 to 14.7.2005 but had not discharged duty liability for the period 15.6.2005 to 23.6.2005 - Held that: - The duty liability for the period 24.06.2005 to 14.7.2005 was discharged vide challans dt. 6.9.2005 (1) and dt. 7.10.2005 (4). It is apparent that the respondent did not have any reason not to pay the service tax for the said period - For the period 10.09.2004 to 16.09.2004 the respondent had not included the value of such service in their ST.3 Returns. It is apparent that having no reason to claim exemption on the said activity. The appellant did not to disclose the said income in the ST-3 Return and did not pay the service tax leviable thereon.
Invocation of extended period of limitation is fully justified - appeal allowed - decided in favor of Revenue.
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2018 (2) TMI 154 - CESTAT CHANDIGARH
Renting immovable of property service - case of the department is that the activity of letting out warehouses to FCI would attract service tax under section 65 (105 (zzzz) of the Finance Act, 1994 as renting of immovable property for business or commerce - Held that: - As the appellant is providing various other services apart from the space for storage, therefore, the services appropriately fall under the category of Storage and Warehousing Services. Further, as these services are for agricultural produce, which is not in dispute, therefore, the appellant is not liable to pay service tax on Storage and Warehousing which has been exempted from service tax as per section 65 (105) zza) of the FA, 1994 - the appellant is not required to pay service tax on their activity - appeal allowed - decided in favor of appellant.
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2018 (2) TMI 153 - CESTAT MUMBAI
Benefit of N/N. 16/02-Service Tax dated 2.8.2002 - Whether the service provided to World Bank and International Finance Corporation is eligible for exemption N/N. 16/02-Service Tax dated 2.8.2002, which provides exemption to the services provided to United Nations or an International Organization? - Held that: - the definition of international organization as provided therein all the entities of United Nations are covered in the exemption. Therefore, if any entity falls under the umbrella of United Nation, all those entities are covered under the explanation in the exemption notification and apart from those entities, if there are other entities which may or may not part of United Nation, but listed in schedule of Section 3 of the United Nation (Privileges and Immunities) Act, 1947, those entities will be covered under International organization - in the present case, World Bank and International Finance Corporation are part of United Nations. Therefore, there is no need to resort to the definition of International Organization for extending the benefit of notification. In this scenario, the services provided to World Bank and International Finance Corporation being entities of United Nation, exempted under N/N. 16/2002-ST. - benefit allowed.
CENVAT credit - Whether the appellant are entitled for CENVAT Credit in respect of input services namely, credit of Insurance Auxiliary Service, Outdoor Catering Service and Mandap Keeper Service for the period prior to 1.4.2011? - Held that: - the Insurance Auxiliary service used for indemnification of the officials such as Directors, employees, who play key role in providing the output service. The mandap keeper service used for conducting interviews for hiring employees, therefore, it is directly related to the overall providing of output service. Outdoor catering service is provided to the employees and clients of the appellant and the cost of the outdoor catering is incurred by the appellant. Therefore, it qualifies as input service and the credit is admissible. The exclusion clause was introduced on 1.4.2011 - In the present case, the period involved is prior to that date. Therefore, there is no dispute for allowing the credit on the aforesaid services - credit allowed.
Whether the short utilization of CENVAT Credit against the eligible 20% can be carried forward in the subsequent month and such carried forward amount can be utilized, which comes to more than 20% of the total tax liability in the subsequent month? - Held that: - f in a particular month against the liability of 20% if the appellant utilized less than 20% and the remaining amount is available to the appellant for utilization and the same was utilized in subsequent month. On considering overall period, the total utilization remains within 20% ceiling irrespective in some month utilization is less than 20% and in subsequent month, the utilization is more than 20%, the conditions of Rule 6(3)(c) of CENVAT Credit Rules, 2002, in our view stand complied with - identical issue decided in the case of VIJAYANAND ROADLINES LTD. Versus COMMISSIONER OF C. EX., BELGAUM [2006 (12) TMI 56 - CESTAT,BANGALORE], where it was held that In case a service provider avails credit on any input service and renders such output services which are chargeable to service tax as well as exempted, then the service provider is required to maintain separate accounts for receipt and consumption of input service meant for taxable output service and non-taxable (exempted) output service - in the present case, the appellant in overall period did not exceed 20% of CENVAT Credit utilized. Hence, the demand of service tax equivalent to amount of CENVAT Credit utilized in excess to 20% is not sustainable, accordingly set aside.
Appeal allowed - decided in favor of appellant.
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2018 (2) TMI 152 - CESTAT MUMBAI
Refund claim - time limitation - whether the time period for filing refund under Rule 5 i.e. one year from the date of invoice or from the receipt of convertible foreign exchange against the export of service? - Held that: - From the plain reading of Rule 6A of the Service Tax Rules, 1994, unless and until the payment consideration in convertible foreign exchange against the export of service is received, the export of service is not complete - the relevant date of one year for filing of refund claim should be reckoned from the date of receipt of convertible foreign exchange - appeal dismissed - decided against Revenue.
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2018 (2) TMI 151 - CESTAT CHENNAI
Management, Maintenance or Repair services - period of dispute is from July 2004 to March 2008 - Held that: - The activities undertaken by the appellants in pursuance of the work order is clearly covered by the tax entry as they are involved in management, maintenance of such circuit for which they have obtained consideration from their clients - demand upheld.
Liability of service tax as of sub-contractor - Held that: - The present work order given to the appellants cannot be considered as a subcontract of such contract given to the main system integrators. As already noted, the system integrators are involved in various activities taxable under various tax entries. The details are not before us. As such, it will not be possible to come to a conclusion that the appellant has only executed the said contract work of a main contract of the same tax entry given to the system integrators.
Time limitation - Held that: - no tax is paid on the present disputed activity - Extended period demand is sustainable.
Penalty - invocation of section 80 - Held that: - Section 80 provides for waiver of penalty imposed under Section 78, if the appellants can show reasonable cause. The appellants have pleaded that Wipro has given a certificate of payment of service tax on the whole consideration which is inclusive of consideration paid to the appellants - penalty waived by invoking section 80.
Appeal allowed in part.
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2018 (2) TMI 150 - CESTAT CHENNAI
Demand from re-constituted partnership firm - Held that: - the partnership firm constituted by the original partners is no longer in existence as it has been dissolved by the death of the partners - since the firm has obtained new service tax registration, we are of the opinion that the demand prior to 27.8.2000 will not sustain which requires to be set aside, which we hereby do.
Valuation - includibility - amount repaid / refunded to the customers - Held that: - This issue has not been considered by the authorities below. The said issue requires verification and for this matter, we are of the view that the matter has to be remanded to the adjudicating authority - matter on remand.
Appeal allowed by way of remand.
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2018 (2) TMI 149 - CESTAT CHENNAI
Intellectual Property Service - reverse charge mechanism - case of appellant is that Since recognition by Indian law is a pre-requisite to tax under IPR service, the appellants are not liable to pay service tax - Held that: - In the present case, the IPR is not registered for enforcement under any law including Trade Mark Act in India. This is an admitted fact. IPR now under consideration can be construed to be recognized by the Indian Law, if he satisfies the requirement of IPR as per law. Registration is not a requirement - the appellant cannot be held liable for service tax under IPR - appeal allowed.
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2018 (2) TMI 148 - CESTAT CHENNAI
Liability of service tax - payment of consideration for usage of Trademark "AREVA", which is owned and registered by parent company of the appellants in France - reverse charge mechanism - Held that: - There is no provision of Intellectual Property Rights Service for tax liability on reverse charge basis, when such Intellectual Property Rights/Trademark is not recognised for enforcement in India under any law for the time being in force. The submission of the Revenue that the Trademark used by the appellants were recognised by the Trademarks Act, 1999 as the same is fulfilling the legal requirements, cannot be appreciated. As long as it is legally not recognised by a process under the Act, the same cannot be considered as recognised by the law.
Circular dated 17.09.2004 of CBEC clarifies that IPRs covered under Indian law in force at present alone are chargeable to service tax. In fact, the clarification supports appellants.
Appeal allowed - decided in favor of appellant.
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2018 (2) TMI 147 - CESTAT CHENNAI
Business Auxiliary Services - appellants were doing powder coating on the aluminium channels / frames supplied by the customers - Held that: - issue is decided in the case of M/s. Hitech Industrial Lining Pvt. Ltd. Versus Commissioner of Central Excise, Salem [2017 (8) TMI 837 - CESTAT CHENNAI], where it was held that the appellant was only discharging job work much amounted to processing of goods and therefore did not involve any production of goods - appeal allowed - decided in favor of appellant.
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2018 (2) TMI 146 - CESTAT CHENNAI
Penalty u/s 78 of FA - construction of a false ceiling on works contract basis - payment of tax with interest on being pointed out - Held that: - during the relevant period, there was lot of confusion in the field and the law came to be settled with the Hon’ble Supreme Court decision in the case of Larsen & Toubro Ltd. [2015 (8) TMI 749 - SUPREME COURT], where it was held that - the benefit of Section 80 of the Finance Act, 1994, stand extended to the appellants and penalties stand set aside - appeal allowed - decided in favor of appellant.
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2018 (2) TMI 145 - CESTAT CHENNAI
Penalty u/s 76 - payment of service tax with interest before issuance of SCN - service tax on taxable amount realized from customers - Held that: - appellants have discharged their liability of service tax along with interest before issuance of the SCN. The entire tax along with interest was paid on 14.2.2011 whereas the SCN has been issued on 4.10.2011. Sub-section (3) to Section 73 provides that when the assessee pays the entire service tax liability on its own volition or on being pointed out by the department, no SCN is to be served on the assessee - penalty unjustified - appeal allowed - decided in favor of appellant.
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