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Service Tax - Case Laws
Showing 81 to 100 of 323 Records
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2018 (2) TMI 1251
GTA Service - reverse charge - concessional rate of tax @25% - Notification No. 32/2004-ST - 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:- On appreciating the aforesaid chronological events and various clarifications of CBEC and in particular the 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 - Decided in favor of assessee.
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2018 (2) TMI 1250
Application for Settlement Commission - Eligibility to accept the Settlement Application - Development and Supply of Content Services - demand of service tax on various grounds.
Held that: - the Bench observes that the case is not one that can be settled in this Forum in view of rival claims, leading to total divergence on facts and on law, which are essential for settling this case. The Bench observes that the issue of analysing the facts, interpretation of legal provisions and consequently determining the tax liability or otherwise of services merely on the basis of claims made by the applicant vis-a-vis the counter claims made by the department cannot be decided in this forum as in an Adjudication proceeding.
The Bench, by virtue of the powers vested in it in terms of Section 32L of the Central Excise Act, 1944, made applicable to Service Tax matters under Section 83 of the Finance Act, 1994 rejects the case and sends the case back to the adjudicating authority for adjudication in accordance with the provisions of the law.
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2018 (2) TMI 1249
Construction Service other than residential complex, including Commercial/ industrial buildings or civil structures - the applicant had filed ST-3 Returns for Construction service, but the Service Tax was paid for Works Contract Service - N/N. 30/2012-S.T., dated 20-6-2012 read with Rule 2(d) of the Service Tax Rules, 1994 - reverse charge mechanism - demand of interest and penalty.
Held that: - Even though initially a portion of the tax was wrongly paid by the Service recipient, instead of the Service provider, i.e. the applicant, and even accepting that the wrong payment had happened by mistaken understanding of the legal position, the fact remains that Service Tax was short paid by the Service provider vis-ä-vis the value determined by them under Section 67 of the Finance Act, 1994. It is also an admitted fact that the applicant had raised bill on the Service recipient charging 100% of the applicable rate of Service Tax. Having charged Service Tax at 100% and paying only 50% of the tax to the Government clearly establishes short payment by the Service provider, attracting interest.
It is only a case of excess payment of tax by a different assessee, dealt according to the provisions of law governing refund/ adjustment and it cannot be linked with the case on hand. Hence, the Bench holds that interest is chargeable from the date on which the Service Tax became payable by the applicant, as alleged in the show cause notice and as contended by the jurisdictional Commissioner. The Bench, thus, settles the Service Tax liability and interest liability at ₹ 81,59,255/- and ₹ 14,61,006/respectively.
Penalty - Held that: - This is a case of short payment of Service Tax. Though the sequence of events suggest that the short payment had occurred out of mistaken understanding of the legal position by the Service recipient, the applicant had not disclosed the above facts of short payment till the unit was audited by the officers of the Department. Nevertheless, the applicant had paid short of the appropriate Service Tax and the short payment had come to the notice only on verification by the Audit. The applicant has not suo moto informed the position to the Department - Considering the fact that misunderstanding of the provisions of Notification had led to the short payment of Service Tax and the applicant had made good the short payment on being pointed out, the applicant is entitled to partial waiver of penalty, which this Bench is inclined to consider. Hence, the Bench grants partial waiver from penalty to the applicant.
The Bench considers it a fit case for grant of immunity from prosecution to the applicant - The immunities are granted in terms of Section 32K of the Central Excise Act, 1944, as made applicable to Service Tax matters vide Section 83 of the Finance Act, 1994. If the applicant fails to pay the sum ordered as above, the immunity granted shall stand withdrawn.
Appeal disposed off.
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2018 (2) TMI 1248
Application for settlement u/s 32 of the CEA 1944 - security agency and manpower recruiting agency service - It is the case of the petitioner that on account of prevailing fluid situation about applicability of the service tax to security service agency, the service tax was not paid for the particular disputed period. However, after the visit by the officers, the service tax was substantially paid.
Held that: - The order of the Settlement Commission is passed on three findings. Firstly, the Settlement Commission was not convinced with the explanation offered by the petitioner regarding the circumstances for not filing the returns referred to in sub-clause-(a) to proviso to Section 32E(1), secondly, impliedly, the petitioners have not made true and full disclosure and thirdly, that the case was pending for decision before the CESTAT in an appeal filed by the Revenue.
Upon receipt of the application under Section 32E, the Settlement Commission is required to issue notice within seven days on receipt of such application, calling upon such applicant to explain in writing why the application made for settlement should be allowed to be proceeded with - in connection with the hearing, a communication dated 19.12.2014 came to be issued, informing the petitioners about date of hearing on 08.01.2015. In-between, there does not appear to be any communication with regard to the application before the Settlement Commission. The affidavit in reply on behalf of the Department also does not indicate any proceedings in-between.
With regard to the ground regarding pending appeal before the CESTAT, it would be pertinent to mention that the so called pending proceeding referred to by the Settlement Commission pertains to coercive action initiated under Section 87 of the Finance Act, 1994 freezing five bank accounts of the petitioners. The appeal of the petitioners came to be allowed by the Commissioner (Appeals) by its order dated 23.12.2013, against which the Department has preferred appeal before the CESTAT. In the opinion of this Court, such proceeding, for the purpose of this case, cannot be considered as a restriction under 3rd proviso to Section 32E(1) to entertain the application for settlement.
Admittedly the petitioner had not paid the full tax on admitted liability. Settlement Commissioner was therefore, correct in not entertaining the application for settlement on this ground. The statute requires that along with the application, the applicant must deposit the entire tax on admitted liability - petition dismissed.
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2018 (2) TMI 1247
Renting of immovable property Service - Nakki Lake which was let out for boating and balloon rides etc., skating rink, let out for skating and certain shops let out for commercial purposes - Held that: - Regarding the consideration received by the appellant from the contractors for using the Nakki Lake and the skating rink area, we note that these two will fall under the excluded category of land used for “entertainment”. Admittedly, both these properties in the form of land were used for admitting public for general amusement - in the absence of any statutory definition. Boat/balloon ride on the lake, skating in the skating rink will fall under the overall ambit of entertainment - tax liability do not sustain.
Rental income from commercial shops - Held that: - based on the facts submitted by the appellant and also considering the status of the appellant as a local Government Authority, we hold that no malafide can be attributed to them for non-payment of tax in time - while the appellant is liable to pay service tax on letting out the commercial properties like shops etc., the same shall be restricted to normal period of demand with no penalties.
Appeal allowed in part.
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2018 (2) TMI 1233
VCES Scheme - extended period of limitation - penalty u/s 78 - penalty u/s 77 (2) for non registration - penalty u/s 70 for late fees.
Held that: - as regards extended period, in this case, the SCN has been issued on 24.12. 2014 for the period 01.04.2009 to December 2012 - Admittedly the period from 01.04.2009 to 30.09.2009 is beyond the extended period of limitation, therefore, the demand of service tax for the period 01.04.2009 to 30.09.2009 is set-aside as time barred - penalty also to be reduced to that extent.
Penalty u/s 78 - Held that: - Admittedly the appellant has filed declaration on VCES Scheme, 2013 wherein the appellant has declared a sum of ₹ 1,43,685/-. The said amount is also found in the demands as per the SCN, therefore, the said amount is required to be reduced from the total demand and the penalty is also modify, therefore, penalty u/s 78 of the FA, 1994 is reduced - Penalty under Section 78 of the Finance Act, 1994 is confirmed equivalent to reduced service tax demand.
Penalty u/s 77 (2) and 70 of the Act - Held that: - Admittedly when the appellant was not registered with the service tax department, the penalty has been imposed if the said penalty has been imposed, therefore, no penalty for the less payment of service tax cannot be imposed on the appellant under Section 77 (2) of the Finance Act, 1994 - penalty imposed under Section 77 (2) is set-aside.
Appeal allowed in part.
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2018 (2) TMI 1188
Levy of service tax - activity done by the petitioner namely erection, maintenance and repairs of street lights for the use of Municipal Corporation - Held that: - The inability to pay the mandatory pre-deposit cannot be a ground to entertain a writ petition - Petition not maintainable - petition dismissed.
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2018 (2) TMI 1187
CENVAT credit - denial on the ground that they have not filed proper ST-3 return for the relevant period - Held that: - Admittedly the impugned order proceeded in a summary manner to deny the credit by simply recording that the services are not covered under the definition of input services and, hence, they are allowed for credit. Even, a plain perusal of the various input services like security services, electrical works, repair and maintenance, mobile charges, advertisement charges, auditor charges etc. will show that these are with reference to business of the appellant and provision of taxable output service which in the present case is telecommunication service - the appellant availed credit based on large number of duty paid documents. They did submit details in a consolidated summary. It is open to the Jurisdictional Authorities to verify each one of the document.
No useful purpose will be served by remanding the matter again as the dispute relates to period which is 14 years before - appeal allowed by way of remand.
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2018 (2) TMI 1186
Club or association service - the affiliation fee and the membership fee received from district level academy members of the assessee/appellant - Held that: - There can be no service and tax liability in such arrangement of members availing certain facilities provided by association of such members forming into a club - the demand of service tax under club or association service and also penalties relatable to such tax liability.
Irrespective of the status of BCCI as a charitable organization or otherwise, BCCI is sole organization incharge of game of cricket officially, in India. Managing, controlling and organizing the game of cricket, its development and other allied activities cannot be considered as business or commerce for service tax purpose. Such activities are with reference to managing a recognized sports. BCCI being the sole authority to manage the sport of cricket in India cannot be considered as involved in business or commerce with reference to activity of developing infrastructure for such sport.
Appeal dismissed - decided against Revenue.
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2018 (2) TMI 1185
Refund of unutilized CENVAT credit - N/N. 5/2006-CE (NT) dated 14.3.2006 - denial on the ground that the condition that the payment for export service is to be received by the service provider in convertible foreign exchange was not satisfied - Held that: - one of the conditions for allowing refund is that the proceeds for export of service should have been received in convertible foreign currency - In respect of the present refund claims, the proceeds for export of service were not received directly in foreign exchange but the same was routed by the Foreign Service receiver through M/s. Wells Forgo NA, USA through HSBC Bank. Ultimately the amount was received by the appellant in rupees.
The issue has been decided in favour of the appellant by this Tribunal in the case of BBC World Services India Pvt. Ltd. vs. Commissioner of Service Tax, Delhi [2018 (2) TMI 369 - CESTAT NEW DELHI], where it was held that It is manifestly clear that the amount credited to the account of the appellant in India is in consequence of a debit of pound sterling account maintained by participated bank in nostro mechanism in UK. The said debit of foreign exchange by the UK bank and consequent credit in Indian rupee in Indian bank as part of nostro transaction is reported to RBI and necessarily forms part of foreign exchange earning in India.
Refund allowed - appeal allowed - decided in favor of appellant.
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2018 (2) TMI 1184
Valuation - includibility - transaction charges - Stock Broking Service - Held that: - It cannot be nobodys case that the transaction charges are charged by the appellants on the clients. It is evident that these charges are required to be paid by the clients only to the stock exchange for the transactions in shares or stocks that they may have entered into on their own or through the stock brokers like the appellant herein. Merely because the appellants are collecting the said charges from their clients and remitting the same to the concerned stock exchange cannot be a reason for considering such amounts as received by them for services rendered by them.
In the case of First Securities Pvt. Ltd. [2007 (6) TMI 33 - CESTAT, BANGALORE] the Tribunal has held that handling charges collected from investors and the amounts collected towards transaction charges cannot be equated to brokerage or commission for purchase of securities.
Appeal allowed - decided in favor of appellant.
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2018 (2) TMI 1183
CENVAT credit - extended period of limitation - Held that: - the appellant availed the credit on the basis of the documents prepared in ERP System. Apparently there is a doubt on availment of the credit on trading goods. In any event, there is no material available on record of suppression of facts with intent to evade payment of tax.
The Tribunal in the case of Rajasthan Renewable Energy Corporation Limited Vs. Commissioner of Central Excise, Jaipur [2016 (12) TMI 342 - CESTAT NEW DELHI] allowed the appeal of the assessee on the ground that the assessee being a State Government Enterprise, the allegation of lawful mis-statement, suppression of facts with intent to evade payment of duty cannot be made.
The demand of CENVAT Credit for the extended period of limitation cannot be sustained and the penalty is also liable to be set aside - appeal allowed - decided in favor of appellant.
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2018 (2) TMI 1182
Refund claim - N/N. 27/2012-CE (NT) - denial on the premise that services for which they have availed Cenvat credit are not input services and appellant has filed 3 times revised returns showing different figures - Held that: - The fact of revised return is on record. Nowhere in the Finance Act, 1994 it is stated that return is to be revised once, twice or thrice. If there is mistake, it is right of the appellant to revise the return and there is no such bar on the appellant to revise the return and appellant can revise the returns several times.
The appellant has provided certificates issued by bank co-relating the exports made by the appellant and payments realised thereof. The adjudicating authority shall examine the certificates to verify that against the exports of goods the appellant has received the payment through the banking channels or not.
The matter is remanded back to the adjudicating authority only for verification of the bank certificates produced by appellant - Appeal allowed by way of remand.
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2018 (2) TMI 1181
Refund claim - rejection on the ground of time limitation - Held that: - if an assessee paid the duty/service tax by mistake or in good faith or pressure from the Dept. the said amount shall go to deposit towards Service Tax or duty - Admittedly, in this case, the appellant has paid Service Tax being recipient by mistake therefore, the said amount shall be deposit as Service Tax and the provisions of Sec 11B of the Act is not applicable - refund allowed - appeal allowed - decided in favor of appellant.
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2018 (2) TMI 1180
Refund claim - time limitation - whether the time limit prescribed u/s 11B of the CEA 1944 in respect of filing of refund claims whether has to be considered from the end of the quarter as prescribed u/r 5 of CCR 2004 read with N/N. 5/2006, dated 14-3-2006 as amended by N/N. 27/2012 or should be applied from the date of receipt of payment for export of services?
Held that: - As numerous appeals are pending in this Bench on this point of computation of time limit whether should be from the date of FIRC only or from the end of quarter of export of services and there being divergence of views of Tribunal, I deem it fit to direct the Registry to place this issue before the Hon'ble President and seek his advice for placing all these matters before Larger Bench to settle the question of law.
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2018 (2) TMI 1179
Levy of service tax - manpower supply service - Held that: - Wherever manpower of appellant was used as per the terms agreed by agreement dated 27-09-2009, there cannot be levy of service tax in disguise holding manpower supply service was provided. The Agreement when read together with the material fact as above, that does not call for levy of service tax on the appellant in respect of alleged manpower supply service - appeal allowed.
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2018 (2) TMI 1178
GTA Service - the appellant had transported “Debris” by deploying their own “trippers and trucks” where “Debries” were loaded - main contention of the appellant is that “debries” is not a goods and it has no value, so liability of tax does not arise - Held that: - it appears that “debries” is not value less item as appellant has got substantial amount by dumping the debries. Had there not been any debries, there was no question of transportation - It is evident that when the appellant has earned a substantial consideration by dumping debries through trippers and trucks i.e own transportation, then the tax is leviable, may be as unregistered dealer - liability of service tax sustained.
Penalty - Held that: - the appellant was under bonafide belief that Service Tax is not leviable - also interpretation of issue involved - penalty not warranted.
Appeal allowed in part.
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2018 (2) TMI 1177
Penalty - Valuation - CHA Services, for service tax purpose - quantification of lump sum amount - Held that: - As the amounts were to be reconciled in the accounts and the non-payment in time is attributable to reconciliation of receipt, we find that it is a fit case for invoking Section 80 for waiver of penalty imposed on this tax liability - penalty set aside - appeal allowed.
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2018 (2) TMI 1176
Jurisdiction - Refund of of accumulated Cenvat credit - case of Revenue is that Commissionerate-I was not having any jurisdiction over the assessee’s factory and the refund claim should have been filed with Commissionerate-III, who had the proper jurisdiction - Held that: - In the absence of any dispute about legality of the refund claim or about appellant’s entitlement to the same, the setting aside the order by the Commissioner (Appeals) is not justified - In case, the officer who sanctioned the refund claim was not having jurisdiction over the appellant, it was for him to return the papers back to the assessee for proper filing or to transfer the same to the correct Commissionerate. In any case, the appellate authority set aside the order instead of remanding the matter to be re-adjudicated by the proper officer.
It is not fit to remand the matter to the proper Commissionerate/Officer as the refund has already been sanctioned and there is no dispute about merits of the refund - impugned order set aside and matter restored the order of the original adjudicating authority with consequential relief to the appellant, if any, as per law - appeal allowed.
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2018 (2) TMI 1129
CENVAT credit - input services - rejection was on the ground that there were 21 services which were held to be not used in providing output services, and hence not classifiable as input service under Rule 2(1) of the Cenvat Credit Rules. The other reason was that Cenvat Credit was availed on the input services but against input invoice which pertains to the period prior to registration.
Held that: - the scope of admissibility of input services is now broadened to include input services used for providing output services. The Tribunal found that the appellate authority had rightly concluded that the input services are used for providing output services. The definition was referred and a factual finding is recorded viz. that all input services used for modernization, renovation or repair to the office premises are also covered. Even the advertising service which was questioned was also held to be an input which would qualify as an input service and used for providing output service. The Tribunal then noted that wherever the employees have contributed to the supply of food service, to that extent, the employer assessee before it has already conceded that it is not covered within the definition.
We wonder as to why Revenue brings appeals after appeals to this Court, and gets them routinely dismissed. The volume does not impress us and merely because 21 services are in issue means nothing to us. So long as the Tribunal's order is within the parameters of law, and cannot be termed as perverse or shocking, the judicial conscience of this Court otherwise, we do not interfere therewith even if other view is possible.
Appeal dismissed.
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