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Service Tax - Case Laws
Showing 1 to 20 of 219 Records
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2018 (3) TMI 2030
CENVAT Credit - input services or not - Air Travel Agent Service - Catering Service - CHA service (Export) - Courier Service - Event management service - Group term insurance service - Hotel service - Rent a cab/Car service - Repair and maintenance service (car) - Tour and Travel Service - Construction service - HELD THAT:- The issue has been settled for the impugned period by the Hon’ble High Court Bombay in the case of CCE, NAGPUR VERSUS ULTRATECH CEMENT LTD., [2010 (10) TMI 13 - BOMBAY HIGH COURT] wherein it has been held that any service availed by the assessee in the course of their business of manufacturing is entitled for cenvat credit - Admittedly, all these services have been availed by the appellant in the course of their business of manufacturing of excisable goods, therefore, the appellant is entitled to avail cenvat credit on the services in question except catering service & rent a cab service for which the matter required for examination at the end of the adjudicating authority to ascertain the fact that whether any amount towards the service has been recovered from the employees or not. If the same is recovered, in that circumstance, cenvat credit attributable to the said amount is not admissible as cenvat credit.
The matter is remanded back to the adjudicating authority to ascertain the fact whether the appellant has recovered any amount to towards catering service & rent a cab service from the employees or not - appeal disposed off by way of remand.
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2018 (3) TMI 2001
Classification of services - Site Formation, Clearance, Excavation, Earthmoving and Demolition Services - activities of excavation and removal of overburden/waste rock/secondary ore by the assessee at the mines - period from 16-6-2005 to 30-11-2007 - HELD THAT:- The respondent, fairly accepts that insofar as this issue is concerned, it is yet to be decided.
Valuation of the service tax - HELD THAT:- The issue is covered by judgment in COMMISSIONER OF SERVICE TAX ETC. VERSUS M/S. BHAYANA BUILDERS (P) LTD. ETC. [2018 (2) TMI 1325 - SUPREME COURT], and decided in favour of the respondent.
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2018 (3) TMI 1842
CENVAT Credit - inputs - AFFF Concentrate, Industrial Paint/Thinner/Primer and Grease, Safety Vests, Angles, Channels, Coils and Barbed Tapes, Rheoduild 821 etc. - HELD THAT:- The appellant has submitted that the industrial paints are used for corrosion control of the steel structures and physical barrier between the steel substrate and corrosive elements such as atmosphere. Therefore, continuously having nexus in providing the output service. Similarly, industrial lubricants were used for lubricating marine loading arms which are part of capital goods for handling and loading of petroleum products, therefore, it has also nexus with the output services provided by the appellant.
The Angles and Panels used in the storage tanks, which ultimately used for providing storage and warehousing service, are eligible to credit - The Rheobuild 821 is also used for mixing with cement for construction of structures, hence, admissible to credit.
The appellant-assessee has not pressed denial of credit in respect of Safety Work Vest and Coil and Barbed Tapes involving total credit of ₹ 2,271/- and 10,665/-, however, they assailed the order for denial of credit on Rheobuild 821, Angles and Panels used for structure of storage tanks.
Appeal allowed in part.
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2018 (3) TMI 1833
Maintainability of appeal - efficacious and alternative remedy of statutory appeal - appropriate appellate forum - learned Single Judge found that the matter involved mixed questions of facts and law - jurisdictional error/breach of principles of natural justice - HELD THAT:- There are no case for interference in appeal. This is for the simple reason that. the learned Single Judge has not entered into the merits of the case hut, having regard to the questions sought to be raised and after finding that the matter involved mixed questions of facts and law; and that a statutory remedy of appeal was available, the learned Single Judge only relegated the petitioner/appellant to such remedy of appeal and even provided for merit consideration of the appeal, if filed within 30 days irrespective of the question of limitation.
It remains trite that the writ jurisdiction is essentially that of discretion and such exercise of jurisdiction can be declined for valid reasons, including the one of availability of efficacious and alternative remedy of statutory appeal. In the given set of facts and circumstances, when the learned single Judge has not found the present one to be a fit case for exercise of writ jurisdiction, we are unable to find any error or infirmity in the order impugned which may call for interference in appeal. Accordingly, these appeals are required to be dismissed.
The appellant may prefer such an appeal within 30 days from today; and if any such appeal is filed within 30 days from today, the same may be examined by the Appellate Authority on its merits, while ignoring the question of limitation - appeal dismissed.
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2018 (3) TMI 1810
VCES Application - time limitation - whether delay in issuing SCN by the authorities beyond 30 days from the date of filing the VCES application pursuant to Finance Act, 2013 could be rejected as time bar? - Circular dated 08.08.2013.
HELD THAT:- A harmonious reading of the Finance Act, 2013 and the Circular makes it clear that the Board has issued the clarification to expedite the process of VCES application making it necessary to issue notice within 30 days, if it is proposed/ intended to reject the same. However, the said Circular cannot disturb the upper limit of one year fixed by the legislation as prescribed under Section 111 of the Finance Act, 2013.
Hon’ble Supreme Court in COMMISSIONER OF CENTRAL EXCISE SERVICE TAX VERSUS ULTRA TECH CEMENT LTD. [2018 (2) TMI 117 - SUPREME COURT] observed that in a case there is a conflict between the Circular and the Rule, the Rule should prevail.
The appeal is remanded to the Ld. Commissioner (Appeals) to decide the case on merit afresh - appeal allowed by way of remand.
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2018 (3) TMI 1774
Broadcasting Service - Advertising Space or Time Service - Consulting Engineer Service - Service tax with interest and penalty paid on being pointed out - cum-tax benefit not passed - imposition of penalties - HELD THAT:- Since the appellant concedes that it had already deposited the Serviced Tax alongwith interest for providing the taxable services, we are not considering the merits of the case as to whether service tax is payable by the appellant or not. However, we find that the Cum-tax benefit has not been extended to the appellant in this case, to which it is legally entitled to.
The matter should go back to the original authority for a limited purpose of re-quantification of the service tax liability.
Penalty u/s 77 and 78 of FA - HELD THAT:- Since there is reasonable cause for non-payment of Service Tax within the stipulated time frame, the provisions of Section 80 of the Act can be invoked for non-imposition of penalties under Section 77 & 78 of the Act - Penalty set aside.
Appeal allowed by way of remand.
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2018 (3) TMI 1770
Maintainability of appeal - HELD THAT:- From the case records it transpires that appellant is not serious in prosecuting this appeal.
The appeal is dismissed for non-prosecution.
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2018 (3) TMI 1747
Condonation of delay of 4 days in payment of the dues - whether the Applicant had complied with the condition of making the payment of dues ordered in the Final Order No. 5/2017-S.T., dated 23-2-2017 within 30 days of the receipt of order? - Held that:- Considering the fact that the Applicant had discharged the balance Service Tax of ₹ 37,08,819/- and penalty of ₹ 5,00,000/-, which were specified and quantified, on the 14th of March, 2017, and had also sworn by an Affidavit that the computation of interest liability was finally confirmed by the Investigating Agency only on 3-4-2017, which was not refuted by the department, observes that the submissions made by the Applicant has force and period between 14-3-2017 to 3-4-2017 needed to be excluded for the purpose of computing the time limit of 30 days given for payment of the dues.
As the interest liability could not be specified in the subject Final Order, inasmuch as a portion of the additional Service Tax liability settled, remained unpaid on the date of order, the Applicant was directed to work out the interest liability to the satisfaction of the jurisdictional Commissioner and pay the same within 30 days of receipt of the order - The Applicant could not be expected to discharge the interest liability, unless the same is confirmed by the department, as per the orders of the Bench.
The Bench feels that the Applicant has a strong case in the matter and accordingly holds, in the facts and circumstances of the case, that the 30 days period insofar as the payment of interest is concerned, is to be taken from the date of communication confirming the quantification of interest by the Departmental officer.
Upon reconsideration of the Miscellaneous Application dated 11-10-2017 filed by the Applicant, the same is allowed.
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2018 (3) TMI 1742
Rebate claim - appellant filed the required declaration under Para 3.1 of the said notification belatedly at the time of processing of their rebate claim - Rule 5 of Export of Services Rules, 2005 read with Notification No 12/2005-ST dated 19/04/2005 - Held that:- The issue herein is squarely covered in favour of the appellant by the ruling of Division Bench of this Tribunal in the case of Commissioner of Service Tax, Delhi Versus Convergys India Pvt. Ltd. [2009 (5) TMI 50 - CESTAT, NEW DELHI], where it was held that non-fulfilment of the procedure cannot lead to denial of the benefit under the beneficial legislation providing for export benefits - rebate allowed - appeal allowed - decided in favor of appellant.
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2018 (3) TMI 1729
Rebate claim - service tax paid on railway freight services used in relation to export of Phospho Gypsum and Gypsum made - rejection on the ground that since the applicant had already recovered freight charges and the service tax paid thereon from its foreign buyers, sanctioning of rebate would entail double benefit to the applicant which is contrary to the provisions of law and M/s. Paradeep Phosphate, who had paid service tax on rail freight, had not given any NOC to the applicant for getting rebate of tax - Held that:- M/s. Paradeep Phosphate Ltd. does not have any objection with the rebate claim filed by the applicant in this case. Even otherwise M/s. Paradeep Phosphate have not claimed any rebate against the service tax paid on the exported goods.
The Government finds that the principle of unjust enrichment is not applicable to the rebate of service tax by virtue of proviso to Section 11B(2) of the Central Excise Act which is made applicable to service tax matters by virtue of Section 83 of the Finance Act, 1994. Therefore, while the Government does not agree with the applicant’s claim that Notification No. 41/2012-S.T. is a complete code and Section 11B of the Central Excise Act is not applicable to rebate of service tax, it fully agrees with the applicant’s contention that the rebate of service tax in respect of exported goods cannot be refused for the reason that they have recovered freight and service tax amount from the foreign customers.
Revision application allowed.
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2018 (3) TMI 1728
Rebate of service tax - service tax paid on commission agents services - N/N. 41/2012, dated 29-6-2012 - services used beyond the place of removal - Held that:- It is quite evident that the commission agents have not actually provided any service regarding recovery of foreign proceeds from the foreign buyers and their services regarding procurement of the orders was not used beyond factory as envisaged in the definition of specified services. Hence, while it can be an input service for availing Cenvat credit under CCR, 2004, it is not a specified service for getting rebate of service tax under Notification No. 41/2012-S.T. Hence, the rebate of service tax on the commission agents’ services is not admissible under Notification No. 41/2012-S.T., even in the light of amended definition of specified services with effect from 1-7-2012.
The Government does not find any fault in the orders of the Commissioner (Appeals) - the revision applications filed by M/s. Ginni Filaments Ltd., Chhata, Mathura, are rejected.
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2018 (3) TMI 1723
Rebate claim - export of goods - inspection services not used beyond the place of removal of goods for export of goods - N/N. 41/2012-S.T., dated 29-6-2012 - Held that:- The applicant has not claimed anywhere that the inspection services were used in respect of the exported goods beyond factory and instead it has been unambiguously accepted in grounds of application at Sl. No. (B) that the inspection services are rendered after the manufacture of the goods but before the removal of the same from the factory from which it is explicit that the inspection service was used within the factory only and not beyond the factory. As a result, it is not a specified service in terms of Notification No. 41/2012-S.T. for the purpose of getting rebate of service tax paid on the specified services - rebate cannot be granted.
Liability of interest on erroneously granted rebate - Held that:- The Government does not find any fault in the order of the Commissioner (Appeals) as under Section 73(3), read with Explanation 1, interest under Section 75 on erroneously refunded Service Tax is payable - demand of interest upheld.
Revision application rejected.
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2018 (3) TMI 1722
Refund of service tax paid - export of rice - rejection on the ground that the difference between the amount of rebate under the procedure specified in Para 2 and Para 3 is lesser than 20% of the rebate admissible under the procedure specified in Para 2 of N/N. 41/2012- S.T., dated 29-6-2012 - Held that:- On mere reading of the N/N. 41/2012-S.T., it is evident that an option is given to the claimant either to claim rebate of service tax under Para 2 or Para 3 of the said notification. The rebate claim under Para 2 is required to be filed with the concerned Custom House along with shipping bills as per rates specified for different items in the Schedule to the above notification.
There is no dispute that in the instant case the rebate claims are not maintainable under Para 3 as the difference between the amount of rebate claimed under Para 3 and the amount of rebate which could be admissible under Para 2 is undoubtedly below 20%. This fact has not been questioned by the applicant also in their revision application.
Rebate of service tax under Para 2 can be claimed only from Customs authorities after complying with the procedure laid down under the above notification and rebate of service tax under Para 2 cannot be granted by the Central Excise authorities as customs authorities have only been entrusted under Notification No. 41/2012-S.T. to disburse rebate of service tax as per rates specified in the Schedule a like drawback of duty of customs. Since this restriction is specified in the notification itself, it cannot be relaxed even when the rejected amount of rebate of service tax is lesser than the amount admissible under Para 2 of the notification, as claimed by the applicant.
The Government finds that Commissioner (Appeals) has rightly set aside the applicant’s appeal before him and no interference from the Government is warranted - revision application rejected.
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2018 (3) TMI 1689
Classification of services - contract for transportation of bricks and for accomplishing the said purposes - Cargo handling service or GTA Service? - Held that:- The service provider M/s. Bharat Refractory's Ltd. has awarded the contract for transportation of bricks and for accomplishing the said purposes, the appellant undertook the activities of loading, unloading, etc. Since the principal objective of the contract was for transportation of goods, the same should appropriately fall under the GTA service and not under cargo handling service.
In this case, the appellant was awarded with the work order for application of Gunning Mass in steel melting process, which has basically meant for maintenance of furnace. Thus, such activities are in the nature of management, maintenance or repair service, as defined under Section 65(64) of the Act.
Appeal dismissed - decided against Revenue.
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2018 (3) TMI 1679
Refund claim - unjust enrichment - case of Revenue is that the issue of taxability is yet to be decided and refund at thus stage may not be appropriate - Held that:- The benefit of a decision in favour of another entity could not be appropriated by the respondent for claiming refund, the impugned order has rendered a clear finding as to the nature of the payment made by the respondent and the circumstances in which it was.
What is sauce for the goose must also be sauce for the gander. It would, therefore, appear that the tax was paid by the respondent on the basis of a judicial decision and, therefore, precluded from seeking judicial remedy against such voluntary payment. The restraint on conferment of benefit of victory attained by another would not apply in the present instance owing to the peculiar circumstances.
Appeal dismissed - decided against Revenue.
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2018 (3) TMI 1673
Liability of service tax - fact of payment of service tax by the appellant not being evidenced by TR 6 Challans for verification by the Jurisdictional Service Tax Officers - principles of natural justice - Held that:- Since the issue involved in the present appeal is only with reference to non-payment of Service Tax through TR6 Challans for verification by the Jurisdictional Officer we find that cannot be the basis for again demanding the amount which was already remitted by the appellant though by book adjustment centrally as per the mandate of their respective department which was also accepted by CBEC - demand cannot be sustained - appeal allowed - decided in favor of appellant.
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2018 (3) TMI 1649
Liability of service tax - “market fees” or “mandi shulk” - lease amount - Held that:- Issue notice.
Tag with Civil Appeal No. 1482 of 2018.
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2018 (3) TMI 1648
Liability of service tax - “market fees” or “mandi shulk” - lease amount - Held that:- Issue notice.
Tag with Civil Appeal No. 1482 of 2018.
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2018 (3) TMI 1628
Manpower Recruitment or Supply Agency Service - evasion of Service Tax for the period 16.06.2005 to 31.12.2007 - Held that:- The assessee-Appellant/Respondent himself has deposited the major part of the demand pertaining to the Service Tax. It shows that the assessee-Appellant/Respondent has accepted that he was liable to pay the Service Tax which was not paid during the period under consideration - demand upheld.
Penalty u/s 76 - Held that:- The assessee-Appellant/Respondent has himself paid the major part of the Service Tax demand. In these circumstances, the appellate authority has dropped the penalty under Section 76 which appears reasonable in the peculiar facts and circumstances of the case - penalty u/s 78 upheld.
Appeal dismissed - decided against appellant.
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2018 (3) TMI 1627
Maintainability of appeal - The registered notice sent for todays hearing is returned undelivered with postal remarks ‘LEFT’. The assessee-Appellants have never informed the Tribunal about their change of address, if any - Held that:- It may be mentioned that as per the maxim VIAILATIBUS ET NON DORMIENTIBUS JURA SUB VENIUNT, law helps those who are vigilant and not those who go to sleep.
The appeal is dismissed for default with liberty to come again for recalling this order subject to satisfying the reason for the default, but within the prescribed time.
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