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Service Tax - Case Laws
Showing 21 to 40 of 219 Records
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2018 (3) TMI 1621
Business Auxiliary Service - Levy of ST on sale of SIM Cards of BSNL - Held that:- Delay condoned - Issue notice returnable within six weeks.
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2018 (3) TMI 1595
Benefit of N///N. 4/2004-ST dated 31.3.2004 - The department was of the view that such exemption is restricted to those services which are consumed within the SEZ. That therefore the appellants are not eligible for the exemption - Held that: - The import/export cargo services are provided by the appellant to the SEZ units are definitely consumed by the SEZ Unit. The denial of exemption alleging that these are not consumed entirely within the SEZ unit does not find favor - exemption allowed - appeal allowed - decided in favor of appellant.
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2018 (3) TMI 1552
Refund claim - exports of iron ore fines - denial on the ground that the services were not received by the exporter M/s.Emars Mining & Construction Pvt.Ltd. because the GTA Bills were not issued in their favor - Held that: - That from the certificate given on all the original invoices or bills, it is observed that the said claimant has received and used the specified services for export of the said goods by mentioning specified shipping bill number as well as taxable specified services - the refund appears eligible for sanction stands as ₹ 37,09,530/- - the order of the adjudicating authority is restored - appeal allowed - decided in favor of appellant.
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2018 (3) TMI 1494
Maintainability of petition - Delay in filing appeal - principles of natural justice - Classification of services - Held that: - a discretionary and equitable relief can be granted only when a litigant is diligent and does not exhibit utter callousness or negligence. If the cause shown does not lack bona fides, then, the litigant can seek discretionary relief - This is a clear case where the authorities called upon the petitioner to remain present and repeatedly. They also called upon the petitioner to produce documents and file reply to the show cause notices - none of these authorities acted perversely or in contravention of the principles of natural justice. Their orders, therefore, cannot be interfered in the writ jurisdiction.
Petition dismissed.
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2018 (3) TMI 1493
CENVAT credit - service provider - input service tax - whether an assessee who is not engaged in the process of manufacturing but is only providing services can avail CENVAT Credit? - Held that: - Reverting back to the definition and the nature of construction activity carried on by the respondent company for erecting the facility of “Cargo Handling Services” it is to be kept in mind that the 'Inputs' have been used for providing output services which is taxable, therefore, by erecting the Railway Siding, the respondent is providing a taxable service for providing an output service, therefore, it is entitled to avail Credit under Rule, 2004.
Reliance placed in the case of Commissioner of Central Excise, Vishakhapatnam-II v. Sai Sahmita Storage (P) Limited, [2011 (2) TMI 400 - ANDHRA PRADESH HIGH COURT], wherein it has been held, with reference to definition of 'Input' in Rule 2 (k) that all the goods used in relation to manufacture of final product or for any other purpose used by a provider of taxable service for providing output service are eligible for CENVAT Credit.
Credit allowed - appeal dismissed - decided against Revenue.
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2018 (3) TMI 1492
Security Agency Services - whether the comprehensive fire services provided by the appellant to M/s Tata Motors Limited would attract service tax under the category of "Security Agency Services" - Held that: - "Security Agency Services" are basically and primarily related to the security of any property. The use of the expression "in any manner", widens the scope of the said services. If the services provided relates to the security of the property, they would attract service tax under the said category - Admittedly, in the present case, the appellant are providing services for security of their customer's property from fire. The same would get covered under "Security Agency Services" inasmuch as the definition of the said services nowhere specifies a particular type of security of the property and further it does not excludes any particular type of service relating to security of the property - demand upheld.
Extended period of limitation - Penalty - Held that: - the appellant was aware of the fact that the comprehensive fire services being provided by them would attract service tax liability under "Security Agency Services" The appellant have not given any valid reason that whey the service tax was being paid in respect of the services offered by them to M/s HAL where they were discharging service tax in respect of services provided to M/s TML - the malafides on part of appellant justified - extended period of limitation rightly invoked - penalty upheld.
Appeal dismissed - decided against appellant.
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2018 (3) TMI 1491
Valuation - inclusion of reimbursable expenses - EPF and ESI contribution - whether the appellant is liable to pay service tax on the amount of EPF and ESI contribution which are reimbursed to them in the course of providing security agency services to their clients? - Held that: - the PF and ESI contributions are statutory contributions and/or statutory levy and the same are deductible under the provisions of Section 67 (3) of the Finance Act, 1994 - appeal allowed - decided in favor of appellant.
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2018 (3) TMI 1490
Non-payment of service tax - belated filing of returns - interest - penalty - Held that: - having sufficient balance of CENVAT credit, non-debiting of the service tax liability cannot be said to be with mala fide intention to evade payment of service tax - appellant have made out a case for waiver of penalty imposed under Section 78 invoking the provisions of Section 80 of the Finance Act, 1994 - penalty set aside.
Penalty u/s 77 - Held that: - the appellant have paid late fees for delay in filing of the returns - in terms of Rule 7(C) of Service Tax Rules, 1994, penalty under Section 77 is also not imposable.
Interest - Held that: - since there is admitted delay in payment of service tax irrespective of whether it is payable from CENVAT credit account or in cash, interest is payable for the reason that interest is a picky bag of the service tax liability - Once the service tax liability is confirmed interest will come into force automatically - interest upheld.
Appeal allowed in part.
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2018 (3) TMI 1489
Outdoor Catering Service - food was supplied to the said college as Tiffin service till financial year 2007-2008 and that food was prepared at appellant's premises, packed and supplied to hostel - Held that: - circular no.332/82/97-TRU dated 24.09.1997 also clarifies that sale of food across the counter, as in fast food joints/restaurants or serving of foods in a restaurant/ hotels do not fall within the ambit of outdoor catering, nor does mere free delivery (or delivery at a nominal cost to cover transportation charges) of food by a fast food joint, restaurant etc. shall be subject to Service Tax as in such cases there is no service element and only a mere sale of food.
Taking into consideration the terms of agreement, activities of the appellant and CBEC Circular dated 24.09.1997 referred by Original Authority, Original Authority's order needs to be restored, since the same is sustainable - appeal allowed.
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2018 (3) TMI 1432
CENVAT credit - trading activity - non-maintenance of separate accounts - Held that: - the appellant reversed the cenvat credit along with interest even before issue of show cause notice. As such, the matter could have been closed in terms of Section 73(3) of the Finance Act, 1994. It would appear that only because the credit period was spread over beyond the normal limitation, the Revenue took action of imposing penalty.
There is a strong case for the appellant to have a reasonable cause of non-reversal of such disputed credit in time - penalty set aside - appeal allowed - decided in favor of appellant.
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2018 (3) TMI 1431
Waiver of pre-deposit - Franchisee Services - CENVAT credit - Rule 6(3)(c) of the CCR 2004 - invoices are not in the name of appellant/registered premises of the appellant - Held that: - whether the activity undertaken by the appellant falls under the category of Franchisee Services or not has been dealt by this Tribunal in the case of Radico Khaitan Limited Vs. CST [2016 (6) TMI 366 - CESTAT NEW DELHI] wherein it was held that the said service does not fall under the category of Franchisee Service - the appellant are not liable to pay service tax under the category of Franchisee Service and it is a case of complete waiver of pre-deposit of demand of service tax.
CENVAT credit - Held that: - the appellant has not taken excess credit of 20% of their tax liability - also, M/s. Seagram Manufacturing Pvt. Limited in whose name invoices have been issued has merged with the appellant, therefore on that ground, Cenvat credit cannot be denied - Cenvat credit cannot be denied on the premise that address at which the invoices have been issued, is not a registered premise. In fact, the invoices have been issued in the name of appellant and who has received the services.
Appellant has made out a prima-facie case for complete waiver of pre-deposit of entire demands confirmed against the appellant - pre-deposit waived - appeal allowed.
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2018 (3) TMI 1430
Refund of unutilized CENVAT credit - Place of Provision of services - appellants are engaged in providing of services to their client and the facilitating their clients for providing those services by third party. - intermediary services in terms of Rule 2(f) of Place of Provision of Rules, 2012 - reverse charge mechanism - Held that: - the appellant has provided the services to customers of their Client and having no direct nexus with the customers of their client has been provided by the appellant to their client and nowhere has facilitated or arranged for the services provided to their client by third party. Furthermore, the appellant has themselves provided the services to their client as the main service provider on principal to principal basis, therefore, the activity undertaken by the appellant do not qualify intermediary as defined in Rule 2(f) of Place of Provision of Services Rules, 2012.
The appellant are not intermediaries in terms of Rule 2(f) of the Place of Provision of Service Rules, 2012. Therefore, the appellants are not liable to pay service tax being provider of service in India in terms of Rule 9 of the Place of Provision of Service Rules, 2012.
Refund allowed - appeal allowed - decided in favor of appellant.
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2018 (3) TMI 1429
Reverse Charge Mechanism - GTA Service for the transportation services received by them - extended period of limitation - Held that: - the similar issue came up before this Tribunal in the case of Dinesh Chandra R. Agarwal Infracon Pvt. Ltd [2009 (10) TMI 395 - CESTAT, AHMEDABAD], where Tribunal hold that as whatever service tax would have been paid by the appellant the same was entitled to avail cenvat credit and the appellant was required to pay less service tax on their final services - the mala-fides against the appellant cannot be attributed, therefore, the extended period of limitation is not invokable - penalty set aside - appeal allowed.
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2018 (3) TMI 1428
Scope of Service Tax Act - State of Jammu and Kashmir - GTA Service - reverse charge mechanism - Held that: - provisions of service within the state of Jammu & Kashmir is beyond scope of Chapter No. V of the Finance Act, 1994. Therefore, no provision related to Service Tax Law is presently applicable to services rendered in the state of Jammu & Kashmir - appeal allowed - decided in favor of appellant.
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2018 (3) TMI 1390
Jurisdiction of Court - requirement of fulfillment of Bank Guarantee - petitioners collected the service tax from the service recipients and did not pay the same to the credit of the Central Government. - Bail conditions - The condition, that the petitioners shall furnish bank guarantee for the remaining due amount, within ten days from the date of order of the Court below, imposed, while granting bail to the petitioners, is what is brought into question in the present criminal petitions.
Held that: - The Court, on the basis of the undertaking given by a party, cannot convert itself into an executing Court to execute the terms agreed by the party, while deciding the bail application - the condition imposed by the Court below to the extent of directing the petitioners to furnish bank guarantee for the remaining amount cannot be sustained and is set aside.
Petition allowed - decided in favor of petitioner.
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2018 (3) TMI 1389
C&F Agency service - cold storage charges - Department entertained the view that the cold storage charges should be included in the gross value charged by the appellant for C&F service and the appellant should be liable to pay the Service Tax on such gross amount.
Held that: - as per the scope of the contract, it is evident that the appellant had only provided the forwarding activities with regard to goods received from the service receiver M/s HLL. Since the appellant had not provided Clearing and Forwarding Services simultaneously, we are of view that the activities undertaken by the appellant, only for forwarding the goods, should not fall under the taxable category of C&F services - Hon’ble Punjab & Haryana High Court in the case of Kulcip Medicines (P) Ltd. [2009 (2) TMI 89 - PUNJAB AND HARYANA HIGH COURT] has held that if one person has rendered services as Forwarding Agent, without rendering any service as Clearing Agent, he should not be termed as the C&F Agent.
The Service Tax demand confirmed in this case, by adding the value of cold storage charges in the gross value of C&F Agent Service cannot be sustained - appeal allowed - decided in favor of appellant.
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2018 (3) TMI 1388
Service of SCN - whether the Show Cause Notice was validly served on the appellant-assessee or not?
Held that: - There is no attempt to serve the notice in the normal process by registered post or speed post. Further the service report prepared by the Superintendent, Faizabad also does not contain any number of attempts undertaken to serve the notice directly to the assessee. Straight away upon receiving the notice it has been served by affixture - there is no valid service of SCN.
Appeal allowed - decided in favor of appellant.
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2018 (3) TMI 1387
Demand of interest and penalty - delay in payment of service tax - adjustment of demand raised by audit team with the advance tax deposited - Held that: - for the period April to August 2013, the appellant had deposited the Service Tax in advance on 29.03.2013. Thus, it is evident that there was no delay in payment of Service Tax by the appellant, as assorted by the Revenue - Since interest is compensatory in character and the same is liable to be paid, only when there is delay in payment of tax, and in this case, admittedly, there is no delay, no interest can be demanded from the appellant.
Penalty u/s 78 - Held that: - since the appellant had deposited the service tax before the due date, the charges of suppression, fraud, collusion etc., cannot be levelled against it for imposition of the penalty.
Appeal allowed - decided in favor of appellant.
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2018 (3) TMI 1386
CENVAT credit - duty paying documents - Rule 9 (1) of the CCR 2004 - appellant had availed Cenvat credit of service tax paid on input services received in its head office at Indore. The bills/ invoices were issued by the vendors in the name of Narmada Jhabua Gramin Bank, New Palasia, Indore and the head office distributed the credit through a letter, mentioning therein that the credit to be taken by regional office, Sehore.
Held that: - on the basis of debit note issued by the head office, the appellant, in this case, had availed the Cenvat benefit. Since as per the proviso appended to Rule 4A (2), debit note cannot be denied as a proper document, the credit should be available to the appellant, subject to fulfilment of the other conditions laid down in sub-rule (2) of the said Rules.
Since the appellants' submits that the debit note contained all the requisite particulars, as provided under the said rule, the matter should go back to the original authority for verification of the documents and for allowing the Cenvat benefit, if the same are in conformity with the statutory provisions - the original authority should also decide whether penalty can be imposed on the facts and in the circumstances of the present case, especially in view of the fact that the appellant is a banking company and is owned and controlled by the Government Departments.
Appeal allowed by way of remand.
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2018 (3) TMI 1385
Refund of Service Tax paid on the taxable services used for exportation of the goods - denial on the ground that the requirements/conditions laid down in Notification dated 29.06.2012 have not been properly complied with by the respondent - Held that: - the disputed services involved in this case were used/ utilized by the appellant in or in relation to exportation of goods. Since the Department has not specifically alleged that the entire goods were not exported by the respondent, the refund claim cannot be denied on the procedural conditions - refund allowed - appeal dismissed - decided against Revenue.
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