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Service Tax - Case Laws
Showing 201 to 219 of 219 Records
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2018 (3) TMI 116
Levy of service tax - commitment charges - Board vide Circular dated 10.9.2004 - Held that: - It is brought out from the records that while paying commitment charges the subsidiary companies deduct TDS considering it to be payment of interest. The Board vide its Circular dated 10.9.2004 has clarified that no service tax is leviable on interest in the category of Banking and Financial service. The respondent is receiving 2% as guarantee commission and 1% as commitment charges. The term interest has not been defined in the Finance Act, 1994. However, interest on loans has been specifically excluded from the ambit of service tax which has been clarified by the Board vide Circular dated 10.9.2004.
It is clarified that commitment charges are in the nature of interest on unutilized portion of credit facilities. The department has proceeded to demand service tax only for the reason that the respondent has accounted it as guarantee commission. When the charges have been received separately under the head of guarantee commission as well as commitment charges, merely by accounting the same as guarantee commission, the amount received cannot be subjected to levy of service tax if the nature of the amount received is not a commission but interest of unused credit.
The commitment charges being in the nature of interest cannot be subject to levy of service tax - appeal dismissed - decided against Revenue.
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2018 (3) TMI 115
Air Travel Agent Service - activity included in booking of air tickets for their customers - whether the appellants are liable to pay service tax on the incentives received for using Computer Reservation System? - penalties.
Held that: - the issue decided in the case of D. Pauls Consumer Benefit Ltd. Versus CCE, New Delhi [2017 (3) TMI 1019 - CESTAT NEW DELHI], where it was held that These computers are connected worldwide to the GDS/CRS, which linked to ticket sales offices of various airlines, hotels and car rental agencies spread across the world. They are by using these GDS/CRS for booking tickets, receiving incentives from the said companies for every segment booked by them.
Appellants have given reasonable explanation for the failure to discharge the service tax, the imposition of penalties is unwarranted.
Appeal allowed in part.
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2018 (3) TMI 114
Business Auxiliary Service - whether the franking charges and the rebate received by the appellant can be subject to levy of service tax?
Held that: - the issue stands covered by the decision in the case of United Mailing Services, Sai Mailing Services Versus Commissioner of Service Tax, Mumbai [2016 (3) TMI 572 - CESTAT MUMBAI], where it was held that the transaction of franking or usage of the postal service is solely between the appellants and the post office with the former as the customer of the latter. The depiction of the latter as a client is not consistent with this reality and the categorisation under Section 65(19)(vi) fails the test of rationality.
Appeal allowed - decided in favor of appellant.
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2018 (3) TMI 113
Levy of Service tax - commission paid to them by airlines for booking cargo space - whether the appellants are liable to pay service tax on the rebate / incentive received from exporters / clients for booking space for cargo? - Held that: - similar issue decided in the case of M/s. Skylift Cargo (P) Ltd. Versus Commissioner of Service Tax, Chennai And (Vice-Versa) [2018 (2) TMI 320 - CESTAT CHENNAI], where it was held that mere sale and purchase of cargo space and earning profit in the process is not a taxable activity and that commission earned by the assessee while acting on behalf of the exporter and mark-up value was of freight charges are not to be considered as commission - appeal allowed - decided in favor of appellant.
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2018 (3) TMI 112
Clearing and Forwarding Agency Service - abatement - Whether the service rendered by the appellant is a composite service under C&F Agency Service or whether these are separate services so as to levy service tax separately?
Held that: - The name of the consignee is shown as M/s. HUL. Thus the appellant has furnished necessary document before the authorities below to show that HUL has discharged service tax liability on GTA service. In that case the ancillary charges of loading and unloading as well as halting charges which are part and parcel of GTA service cannot be included in C&F Agency service - the loading and unloading charges as well as halting charges have been subject to levy of service tax in GTA services.
Appeal allowed - decided in favor of appellant.
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2018 (3) TMI 111
Valuation - reimbursement charges - Board Circular dated 21.12.2009 - whether the exclusion sought as reimbursable expenses from the gross received is legally correct or not? - Held that: - The Tribunal in the case of International clearing & Shipping Agency Pvt. Ltd. Vs. CST, Chennai [2011 (5) TMI 100 - CESTAT, CHENNAI], has held that reimbursable expenses is not to be included in the total value of taxable services - appeal dismissed - decided against Revenue.
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2018 (3) TMI 110
Classification of services - The stand of the Revenue is that such activities will fall under the category of “Event Management Services” w.e.f. 01.10.2002 and further under the BAS with effect from 01.07.2003 - Held that: - There is no dispute that the activities of the appellant are squarely covered within the definition of “Public Relation Services”, which was made taxable w.e.f. 01.05.2006 - the activity of the respondent does not fall within the categories of Event Management Service as well as Business Auxiliary Service - appeal dismissed - decided against Revenue.
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2018 (3) TMI 109
CENVAT credit - advertising agency service - inputs/capital goods - Held that: - Admittedly, the display panels stainless steel box, power meter, electrical equipment, steel framework, mobile toilets, police booth are all clearly items which are specifically will fall under input used by the provider of output service. These cannot be considered as immovable capital goods. As such, there could be no legal or factual basis for denial of credits on such electrical equipments, display panels, stainless steel box, power meter, steel framework, mobile toilets, police booth which are essential materials for display of advertisement by the appellant.
All the items which are now disputed for credit are essentially used to create such structures for display of advertisement. In fact many of these items are themselves used for display without any further elaborate fabrication. In such situation, there could be no reason for denial of credit holding that these items cannot be considered as inputs for such output service.
Time limitation - Held that: - there is no allegation of willful suppression or mis-statement with intention to evade payment of tax - extended period and penalty cannot be invoked.
Appeal allowed - decided in favor of appellant.
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2018 (3) TMI 108
CENVAT credit - various input services - improperly availed CENVAT credit - Held that: - identical issue has attained finally in the hands of4 the Tribunal in the appellant's own case Excellence Data Research Pvt. Ltd. Versus Commissioner of Central Excise, Customs and Service Tax Hyderabad [2017 (5) TMI 1300 - CESTAT HYDERABAD], where it was held that the period involved is prior to 01/04/2011. The definition of input services during the period had wide ambit as it included the words activities relating to business. The credit is eligible on the said services if the same are used for providing output services - credit allowed.
Improperly availed CENVAT credit - Held that: - in the reply to the show cause notice appellant had consistently taken a plea that this amount has been reversed by them in August 2011 itself. Despite such a clear submission by the appellant, I find that the first appellate authority as well as adjudicating authority have not recorded any findings on this issue - matter needs reconsideration.
Appeal allowed in part and part matter on remand.
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2018 (3) TMI 107
Refund claim - denial on the ground that the services for which they have claimed refund are not input service in terms of Rule 2(l) of CCR 2004 - Held that: - no SCN has been issued to the appellant to deny CENVAT credit on the services in question at the time of availment - in the light of the decision in their own case M/s EXL Service. Com (India) Pvt. Ltd. Versus Commissioner of Central Excise, Noida [2017 (8) TMI 1002 - CESTAT ALLAHABAD], the refund claim cannot be denied to them - refund allowed - appeal allowed - decided in favor of appellant.
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2018 (3) TMI 106
CENVAT credit - common input services used for providing both the category of services - Rule 6(3) of the CCR 2004 - Held that: - upon appreciation of the records maintained by the appellant, the adjudicating authority has dropped the SCN and also confirmed /appropriated the amount which was subsequently paid by the appellant. Thus, the original order passed upon appreciation of facts on record cannot be ignored to arrive at the conclusion that the appellant did not maintain separate accounts in terms of Rule 6(3A) of the rules. Since the Commissioner (Appeals) has not properly gone through the submissions of the appellant and did not scrutinise the documents submitted by the appellant in their proper prospective, the demand confirmed on the appellant in the impugned order cannot be sustained - appeal allowed - decided in favor of appellant.
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2018 (3) TMI 105
Short payment of service tax - advertising agency services - CBEC circular dated 31.10.1996 - Held that: - the adjudicating authority while analysing the Board Circular No.341/43/63-TRU dated 31.10.1996 has completely misread the said circular. Para 4 of the circular clearly lays down that the amount paid by the advertising agency for space and time in getting advertisement published and broadcast in print/electronic media will not be included.
Valuation - includibility - service of ₹ 35,31,947/- provided to the client CHI Limited based in Nigeria - Held that: - the service recipient M/s.CHI Limited is located in Nigeria and has no establishment/office in India. The services provided by the appellant have been used outside India and payment of service has been received in foreign convertible currency - demand not sustainable.
Appeal allowed - decided in favor of appellant.
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2018 (3) TMI 25
Validity of SCN - tax liability with interest and penalty paid before issuance of SCN - Held that: - Since the entire tax liability along with interest and penalty has been paid during the investigation and before the SCN, thereafter u/s 73(3) of the FA, the Revenue should not have issued the SCN because the Revenue has not been able to bring on record any evidence to show that there was intention to evade payment of service tax - appeal allowed - decided in favor of appellant.
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2018 (3) TMI 24
Non-compliance with pre-deposit - appellant has placed on record the proof of the pre-deposit of the said amount as per the direction of the Commissioner (Appeals) within the time given by him - Held that: - dismissing the appeal for non-compliance of pre-deposit is not sustainable in law as the appellant has in fact complied with the order passed by the Commissioner (Appeals) regarding the pre-deposit - we set aside the impugned order and remand the case back to the Commissioner (Appeals) for deciding the same on merit - appeal allowed by way of remand.
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2018 (3) TMI 23
Refund of service tax paid on the services rendered in the SEZ area - rejection on the ground that they were filed beyond the period of limitation as also on the ground that they were not required for authorized operations - Held that: - the delay in fling refund claims before the authorities is 14 96 days from the date of payment of Service Tax - all these refund claims after 1.3.2011 on this date N/N. 17/2011-ST came into existence and superseded N/N. 9/2009-ST. - all these claims are within time limit and the matter has to be remitted back to he Adjudicating Authority to decide the case afresh - appeal allowed by way of remand.
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2018 (3) TMI 22
Business Auxiliary Services - Revenue by entertaining a belief that since such services were being provided in India by the appellant, they are liable to service tax under the category of business auxiliary services - Held that: - In the case of Microsoft corporation (India) (P.) Ltd. [2014 (10) TMI 200 - CESTAT NEW DELHI (LB)], the majority decision of the Tribunal held that promotion of a foreign company in India has to be held as export of services inasmuch as services were being provided by the assessee to his principal located abroad. Marketing operations done by an assessee in India cannot be said to be at behest of any Indian customers - the services were held to be as having been delivered and/or used outside India and thus being export of services.
Appeal allowed - decided in favor of appellant.
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2018 (3) TMI 21
Taxability of services - advertising services - appellant took a stand that all the services being provided by them were not taxable services and as such no tax was being paid on the same - Held that: - there are are general grounds without referring to any distinct services having been provided by appellant, falling under the category of non-taxable services - Inasmuch as the said issue raised by the appellant has not been considered by the Lower Authorities, we deem it fit to set aside impugned order and remand the matter to Original Adjudicating Authority - appeal allowed by way of remand.
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2018 (3) TMI 20
Refund of service tax - denial on the ground that the appellant has not produced any evidence to show that the Port Service Providers were authorized by the Port to provide such services, as also on the ground that in some of the cases the service categories were shown to be in than the invoices - Held that: - the issue stands covered by the Tribunal’s decision in the case of SRF Ltd. Versus Commissioner of Central Excise, Jaipur-I [2015 (9) TMI 1281 - CESTAT NEW DELHI] wherein it stands held that description of Port Service given in the Notification No.41/2007 being different from the description of ‘Port Service’ defined in Section 65 of the Finance Act, 1994, cannot be adopted as a ground for denial of refund.
Further the assessee cannot be burdened unduly with the condition to establish that service provider was registered under ‘Port Services’ and were authorized by the port.
Appeal allowed - decided in favor of appellant.
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2018 (3) TMI 19
Classification of services - services of the nature of loading & unloading of goods, breaking & segregation and also transportation of goods by road services - Held that: - the activities carried out by the assessee-Respondents are primarily transportation of goods and loading & unloading etc. which are incidental to the transportation of goods. Such activities cannot be covered within the services of Cargo Handling - appeal dismissed - decided against Revenue.
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