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Service Tax - Case Laws
Showing 61 to 80 of 323 Records
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2018 (2) TMI 1324
Liability of service tax - discount - sub-agent of IATA agents - Held that: - this Tribunal in Trade Wings Ltd s case [2017 (9) TMI 257 - CESTAT NEW DELHI] taking into consideration the fact that the nature of transaction between the registered IATA Agents and the subsequent sub-agent, is that of sale and purchase, and accordingly, held that service tax is not required to be paid by the said sub-agent on the discount received - demand set aside.
Business Auxiliary Services - software of computer reservation system provided by Gallilieo - Extended period of limitation - Held that: - this Tribunal has already decided the issue [2018 (2) TMI 648 - CESTAT AHMEDABAD], which is against the appellant - the demand in the case of show cause notice dated 23.09.2010, being issued invoking extended period of limitation on the said issue, therefore, as held in the order, it should be restricted to normal period of limitation.
Appeal disposed off.
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2018 (2) TMI 1323
Goods Transport Operator Service - recipient of service - Revenue asked the respondent to pay Service Tax in respect of such services received vide leter dated 24.3.2003 pursuant to the amendment made by the Finance Bill, 2003 - Held that: - the identical matter was decided by the Hon'ble Gujarat High Court in the case of Eimco Elecon Ltd. [2010 (7) TMI 477 - GUJARAT HIGH COURT], where it was held that admittedly, the assessee could not be faulted with for not having filed a return after getting himself registered. More particularly, when one considers the language employed in the Proviso below sub-section (1) of Section 68 and the provisions of Section 71A of the Finance Act, 1994, it is not possible to state that the language of the Statute is so clear that any default can be fastened on the respondent-assessee - appeal dismissed - decided against Revenue.
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2018 (2) TMI 1322
CENVAT credit - whether the appellant has availed proportionate cenvat credit attributable to their composite contract, on inputs as well as input service, and has not availed any cenvat credit on inputs and common cenvat credit attributable to input service for supply contract executed by them?
Held that: - matter needs examination for verification of the facts and then to allow refund.
CENVAT credit - CHA and CFA services - denial on the ground that input service has been availed by the appellant on the basis of invoices which were not issued in the name of their registered premises - Held that: - in earlier round of litigation, the learned Commissioner (Appeals) has held in favour of the appellant. Therefore, in remand proceedings, contradictory view cannot be taken for the authorities below as the order in earlier round of litigation has attained finality. Therefore, on the said ground refund claim cannot be rejected.
Refund claim of Cenvat credit on the basis of input which was not issued in their registered office - Held that: - issue has been settled by the various judicial pronouncement namely in the case of National Engineering Ltd. vs CCE [2013 (305) ELT 551] wherein it has been held that as not in dispute the appellant has received the service and used for export of goods, therefore, the refund claim cannot be denied - refund cannot be denied.
Appeal allowed by way of remand.
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2018 (2) TMI 1321
Refund of service tax paid on various services used in the export of goods - Denial on the ground that the goods have been exported under drawback claim and hence in terms of the proviso 1(e) of the Notification No. 41/2007, refund is not allowable - Held that: - the refund claims in question cover the period partly prior to 07.12.2008 and part of the claims are for the period subsequent to the date - After the amendment of N/n. 41/2007 by N/n. 33/2008, the condition regarding drawback availment has been deleted and there can be no objection to grant of such refund subsequent to that date if otherwise allowable.
For the period prior to such amendment by N/N. 33/2008, the condition under Notification is very clear to the effect that the refund under the Notification cannot be paid if said goods have been exported under claim of drawback of service tax paid.
Refund for the period prior to the amendment by N/N. 33/2008 cannot be sanctioned - the cases are remanded to the adjudicating authority for purposes of bifurcating the refund and consider the refund for the period subsequent to the date of such amendment - appeal allowed by way of remand.
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2018 (2) TMI 1320
Business auxiliary service - the commission/fee received by assessee - SCN has been issued on the grounds that the activity rendered by the assessee is covered under the category of "business auxiliary service" only and not under "business support service" - Held that: - we are unable to fathom how the lower appellate authority has taken the view that the assessee were only evaluating prospective customers with respect to their credit worthiness and process their loan applications and present them to ICICI. Based only on this premise, he has concluded that such evaluation activity has the essential character of support service of business or commerce, which became to be taxed only w.e.f. 1-5-2006; that therefore there cannot be any confirmation of service tax on the assessee under Business Auxiliary Services prior to this period - matter remanded to the original authority for denovo consideration
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2018 (2) TMI 1319
Business Auxiliary Service - reverse charge mechanism - the basis of demand is balance sheet figures obtained by the department from the balance sheets of the appellant - Held that: - It is a fact on record that appellant is registered with their Central Excise department as well as under Service Tax and filing their regular returns. No effort has been made to find out how much amount they have paid towards Service Tax and under which head. Moreover appellant has produced CA certificate, no credence has been given to the CA certificate produced by the appellant.
Demands cannot be raised merely on the basis of the figures and no amounts mentioned in the balance sheet in terms of decision of this Tribunal in the case of GSP Infratech Development Ltd. v. CCE, C & ST, Belgaum [2015 (12) TMI 331 - CESTAT BANGALORE].
It is the burden on the Revenue to come with evidence that the appellants are receiving taxable service which Revenue has failed to discharge.
The matter remanded to the adjudicating authority for fair adjudication after considering all the records placed by the appellant and to give finding in detail on each aspects - appeal allowed by way of remand.
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2018 (2) TMI 1318
Execution of land acquisition work - Whether service tax is liable to be recovered from appellants under Section 73(1) of the Finance Act, 1994 for the payments made by M/s SICCL, which were routed through appellants? - Held that: - any amount received by the assessee from Sahara India would be treated as service and liable to service tax - cost of the land can never be treated as value of the services - demand set aside.
Taxability - leveling of soil including of gorges/nallah, removing of shrubs, grass and ruble etc. at Sahara City Homes, Baharaich as per agreement/work order dated 03/11/2003 - Whether service tax is to be recovered from the appellant under Section 73(1) of the Finance Act, 1994 for leveling of soil including of gorges/nallah, removing of shrubs, grass and ruble at Sahara City Homes, Baharaich as per agreement dated 03/11/2003? - Held that: - the site formation and excavation and earth moving and demolition service was introduced in the service tax net on 16/06/2005 and the agreement entered between the respondents with M/s Sahara India dated 03/11/2003 expected the work to be finished within a period of 2 months, which is much prior to 16/06/2005 - demand set aside.
Appeal dismissed - decided against Revenue.
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2018 (2) TMI 1264
Vires of N/N. 22/2015-CE(NT) dated 29th October, 2015 - Violation of Articles 14, 19(1)(g), 265 and 300A of the Constitution of India - utilization of credit accumulated on account of Education Cess and Secondary and Higher Education Cess for payment of service tax leviable and payable on telecommunication services - grievance of the petitioners is, and they claim a vested right to avail benefit of the unutilized amount of EC or SHE credit, which was available and had not been set off as on 1st March, 2015 and 1st June, 2015 for payment of tax on excisable goods and taxable services respectively.
Statutory effect of withdrawal of EC and SHE on excisable goods and taxable services with effect from 1st March, 2015 and 1st June, 2015 respectively, pursuant to the Finance Act, 2015 - Held that: - Omission of a provision signifies deletion of that provision and is normally not treated as different from repeal. The repeal/omission in the present case was not made retrospectively, but applied prospectively. Manufacturers and output service providers were entitled to take benefit of EC and SHE credit on the EC and SHE payable on manufactured goods and output services on or before the cut off date, i.e., 1st March, 2015 in case of manufactured goods and 1st June, 2015 in case of taxable services. They have not been allowed to take credit after the said two dates for the simple reason that EC and SHE ceased to be applicable and were no longer payable after the said dates. The provisos added to Rule 3, sub-rule (7) in clause (b) are really in the nature of concessions confined to a limited and narrow set of cases and are not of general application. Noticeably, they expand the scope and give benefit of utilization of accumulated EC and SHE against payment of excise duty and service tax, which was not the position prior to 1st March, 2015 and 1st June, 2015, respectively. It is also easily apparent as to why the said benefit or concession was granted. These cases certainly fall in a distinct and separate class. The said classification would not fall foul of vice of discrimination. Article 14 is not offended. In fact the petitioners do not challenge and question the provisos, albeit seek additional benefit and concession beyond those granted, even though they were never available earlier.
It is no doubt true that the two cesses, in the present case, were in the nature of taxes and not fee, but it would be incorrect and improper to treat the two cesses as excise duty or service tax.
In the present case, credit of EC and SHE could be only allowed against EC and SHE and could not be cross- utilized against the excise duty or service tax. In fact, what the petitioners seek is an amendment of the scheme to allow them to take cross utilization of the unutilized EC and SHE upon the two cesses being withdrawn against excise duty and service tax, though this was not the position even earlier. Both EC and SHE were withdrawn and abolished. They ceased to be payable. In these circumstances, it is not possible to accept the contention that a vested right or claim existed and legal issue is covered against the respondents.
Petition dismissed - decided against petitioner.
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2018 (2) TMI 1263
Benefit of N/N. 25/2012 dated 20.06.2012 - transportation of timber/wooden logs, which are used by them as raw materials in their manufacture - scope of the term “agriculture” and “agricultural produce” in terms of Section 65 B - Held that: - Cutting/logging of trees for timber for further industrial use can more appropriately come under “Forestry Operations”. Cultivation relates more to plants, various crops etc. There is a clear distinction between plant/crop and trees - Harvesting from unmanaged sources (such as ocean fishing and deforestation) is not agricultural activity.
In the absence of categorical evidence recorded to the contrary, it is to be considered that timber now under considerations is wholly or partly out of spontaneously grown trees and not all are product of deliberate cultivation due to human agency or effort, that income cannot be treated as agricultural income.
The exemption available to GTA service for transport of “agricultural produce” cannot cover the transport of cut wood of trees - appeal allowed - decided in favor of Revenue.
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2018 (2) TMI 1262
Penalty - assessee provided taxable as well as exempted services which calls for maintenance of separate accounts on credit availed on input services - Rule 6(3) of CCR 2004 - Held that: - There is no separate identifiable service attributable to investment portion of the premium in the present case. In other words the premium amount received was invested substantially and for managing such investment, administration charges are collected and Service Tax paid. No other service, least of all exempted service, could be identified in such arrangement - we are in agreement with the method of calculation adopted by the Original Authority in arriving at the portion of exempted service/ taxable service.
Appeal allowed - decided in favor of Appellant.
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2018 (2) TMI 1261
Whether the foreign language training institute imparting training and coaching in English, Spanish, French and German, are eligible for exemption under Notification No. 9/2003-ST dated 20.06.2003 and Notification No. 24/2004-ST dated 10.09.2004 or are taxable under the category of commercial training and coaching service or not?
Held that: - Tribunal in the case of M/s. British School of Language, New Delhi vs. CST, Delhi [2017 (4) TMI 97 - CESTAT NEW DELHI] wherein this Tribunal relying on the decision of M/s. Alliance Francaise De Delhi vs. CST, Delhi [2017 (3) TMI 119 - CESTAT, New Delhi] held that imparting training in foreign language will make the institute vocational training institute. Therefore, they are entitled for exemption under Notification No. 24/2004 ST dated 10.9.2004.
Time limitation - Held that: - initially the appellant has registered and paid the service tax. But the Joint Commissioner vide order dated 5.10.2005 has observed that the activity undertaken by the appellant is not taxable - extended period of limitation is not invokable.
Appeal allowed - decided in favor of appellant.
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2018 (2) TMI 1260
Classification of services - Administrative Charges - Revenue entertained a view that such “Administrative Charges” are liable to be taxed under the category of “Real Estate Agent” service - Held that: - similar dispute came up before the Tribunal on earlier occasions also including in the case of appellant’s sister concern Ansal Housing & Construction Ltd. vs. CST, New Delhi [2017 (11) TMI 546 - CESTAT NEW DELHI] where it was held that the appellant are not liable to service tax under “Real Estate Agent” service - appeal allowed - decided in favor of appellant.
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2018 (2) TMI 1259
Classification of services - some contracts executed by the appellant for the Delhi Jal Board (DJB) in which nature of work involved replacing of old damaged water line, for improvement of water supply in various villages as well as replacement of badly silted and damaged sewer lines - case of Revenue is that the services rendered by the appellant are classifiable under Management, Maintenance or Repair Service defined under Section 65 (4) of the Finance Act, 1994 - Held that: - The nature of the activity involves replacement of defective pipelines as also de-silting and repairing of existing pipelines - It is seen that the contract is for replacement of pipelines in specified segments. It is not in the nature of an ongoing maintenance contract. The perusal of the contract further reveals that the same is not in the nature of construction or laying of pipelines/conduit.
After considering the nature of the activity undertaken by the appellant and perusal of a few sample contracts, it is found that the service is more specifically covered under the category of Commercial and Industrial Construction, under the Sub-clause (d) of Section 65 (25b) - further, the activity has been executed for Delhi Jal Board which is not a commercial organization. The classification under Management, Maintenance or Repair will not cover the activities of the appellant since these are not in the nature of Maintenance Contract for specified period.
The activities are classified under Commercial Industrial Construction and further will not be liable of payment of Service Tax during the disputed period in as much as the activity carried out is for Delhi Jal Board which is not a commercial organization - appeal allowed - decided in favor of appellant.
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2018 (2) TMI 1258
Demand of interest - whether the respondent is liable to pay interest on Cenvat Credit which was taken by the appellant but reversed subsequently? - Held that: - the issue has come up before the Hon’ble High Court of Karnataka in the case of CCE, Bangalore Vs. Bill Forge Pvt. Ltd [2011 (4) TMI 969 - KARNATAKA HIGH COURT], where it was held that The liability to pay interest would arise only when the duty is not paid on the due date. If duty is not payable, the liability to pay interest would not arise - since the credit which has been taken by the respondents has not been utilized before the same has been reversed, we find no merit in the view of Revenue that interest is payable.
Valuation - includibility - various expenses incurred by the respondent towards telephone, insurance, freight, courier etc - Held that: - The fact whether certain services are eligible for Cenvat Credit as input service is to be determined on the basis of definitions in the Cenvat Credit Rules, 2004. There is no justification for adding the value of such input services in the total assessable value for payment of service tax only for the reason that such Cenvat Credit have been taken.
Business Auxiliary Service - target incentives - Held that: - the issue already stands settled in favour of the respondent in the case of Sharyu Motors V/s CST, Mumbai [2015 (11) TMI 229 - CESTAT MUMBAI], in which an identical issue has come up and the Tribunal, where it was held that Service Tax liability confirmed against the appellant on the amount received as incentive for achieving the targets under Business Auxiliary Services is unsustainable and liable to be set aside - demand set aside.
Appeal dismissed - decided against Revenue.
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2018 (2) TMI 1257
Valuation - reimbursement of electricity charges - Whether during the 01.06.2007 to 30.09.2011, the respondent herein required to pav service tax amount collected from their tenants as reimbursable electricity charges or otherwise?
Held that: - there no dispute as to the fact that the demand of service tax for the period question is in respect of an amount collected toward electricity charges of the conveyor belt hired on rent - similar issue in respect of inclusion of amounts collected from the respondents towards certain common services i.e. electricity charges was considered by the Bench in the case of ICC Realty (India) Pvt. Ltd. [2013 (12) TMI 854 - CESTAT MUMBAI], where it was held that Electricity charges collected from the tenants cannot be formed part of the assessable value for the purpose of service tax as provider of renting of immovable properties.
Appeal dismissed - decided against Revenue.
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2018 (2) TMI 1256
Commercial and Industrial Construction Services - Construction services - Maneri Bhali Hydro-Electric Project - LARJI HYDRO-ELECTRIC PROJECT - Held that: - From the description of work executed by the assessee in the Maneri Bhali Hydro-Electric Project, we note that it is in connection with construction of barage, intake sedimentation chamber etc. There is no doubt that such work has been carried out as part of the hydroelectric project and construction of dam therefore - these activities are in connection with the construction of the dam and hence excluded from the purview of Commercial or Industrial Construction”.
With reference to the work executed by the assessee for Himachal Pradesh Electricity Board, such work involves construction of highway tunnel which is extension of existing highway tunnel. Construction of tunnel is specifically excluded from the purview of “Commercial and Industrial Construction - no service tax is liable for such construction activities.
Business Support Services - certain amounts booked under “miscellaneous receipts” - Held that: - no documentary evidence was produced by the assessee but, assessee is in a position to provide copies of all the documents evidencing the fact that such miscellaneous receipts do not pertain to receipt of any consideration towards provision of any service - matter placed on remand for reconsideration.
Decided partly in favor of assessee and part matter on remand.
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2018 (2) TMI 1255
Refund claim - Management, maintenance and repair services - unjust enrichment - Held that: - the appellant has not produced the complete contracts entered into between it and the service receivers - Since for ascertaining the fact of applicability of the doctrine of unjust enrichment, the documents are required to be scrutinized in proper perspective - the impugned order passed by the Commissioner (Appeals) in rejecting the refund application of the appellant is in consonance with the statutory provisions.
Matter remanded back to the Original Authority for verification of the details of the contracts to be produced by the appellant - appeal allowed by way of remand.
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2018 (2) TMI 1254
Cable operator services to the subscribers - Penalties - Held that: - What is being contended is that tax has been demanded even on amounts shown in the notebook as due from customers - the interests of justice would be served by remanding the matter for the limited purpose of examining this contention of the appellants and possible rework the tax liability - appeal allowed by way of remand.
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2018 (2) TMI 1253
Refund claim - the service provided appears to be outside the provisions of Rule 6A of Service Tax Rules, 1994, hence the refund claim filed by the respondents sought to be rejected - Held that: - in this case the respondent is located in India and providing services to the customers of their principal located outside India on behalf of their principal in India - as the respondent service in India to the customers of their principal located outside India, therefore, the said services are provided by the respondent on behalf of the principal outside India who is located outside India, are the export of service.
Appeal dismissed - decided against Revenue.
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2018 (2) TMI 1252
Transportation service through pipeline / conduit - Department took the view that delivery of naphtha from appellant s terminal to NFCL storage tanks through pipeline amounts to providing taxable services under the category transportation of goods through pipeline and that therefore the amount of ₹ 135/- per MT collected for this purpose will require to suffer service tax, for the period January 2005 to February 2006.
Held that: - There is an understanding that in case of any loss of goods during the transportation, it is the appellants who bear the loss and in fact have even paid excise duty on the loss quantity value, so also under the agreement, the sale by the appellant to NFCL is complete only when naphtha reaches the storage tanks. The appellant is not required to discharge excise duty liability on the sale of naphtha made to NFCL by availing N/N. 6/2002-CE.
Just because there is no excise duty liability in respect of the impugned clearances, the attempt of the department to collect service tax in respect of throughput charges, in our opinion, will not pass muster.
Reliance placed in the case of M/s. Grasim Industries Ltd. Versus C.C.E. Indore [2016 (5) TMI 87 - CESTAT NEW DELHI], where it was held that The transport of chlorine through pipeline is done by the appellant in their own account and the delivery on sale is made to the buyer. The transportation charges are included as a consideration for sale and to discharge central excise duty. Therefore, no justifiable legal basis found to sustain any service tax liability on the appellants.
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