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Service Tax - Case Laws
Showing 41 to 60 of 219 Records
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2018 (3) TMI 1384
Change in tax entry - classification of service - provision of Multi Purpose Support Vessel (MSV) to ONGC and L&T on charter hire basis - case of Revenue is that prior to 16/05/2008 the service should be taxed under different entry, namely, BSS - whether taxable under Business Support service or under supply of tangible goods? - Held that: - Tribunal in Diebold Systems (P) Ltd. Vs. CST, Chennai [2007 (11) TMI 93 - CESTAT, CHENNAI] held that in case of introduction of new tax entry without amending the pre-existing tax entry it cannot be said that the same activity will be liable to tax under pre-existing as well as new entry - there is no merit in the contention of the Revenue for the tax liability of the appellant in respect of supply of tangible goods prior to 16/05/2008.
Eligibility of the appellant/assessee for concession under N/N. 12/2003 - Held that: - There is nothing in the present appeal to state that the Notification 12/2003-ST is not available because of existence of different facts which are evidenced.
Penalty u/s 76 and section 78 - Held that: - the proceedings itself should have closed under Section 73 (3) as the service tax liability alongwith interest has been discharged prior to issue of show cause notice - penalty set aside.
Appeal allowed - decided in favor of appellant.
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2018 (3) TMI 1331
Maintainability of petition - Exemption of payment of service tax - N/N. 25/2012-ST , dated 20.06.2012 - petitioner carried out work of water supply to the respondent-BESCOM, a Public Sector Undertaking - Held that: - The impugned order, Annexure- A dated 17.03.2016 passed by the Assistant Commissioner cannot be said to be without jurisdiction and there is no patent lack of jurisdiction or such breach of principles of natural justice, which may entitle the petitioner to directly invoke the extra ordinary jurisdiction of this Court under Article 226 of the Constitution of India - petitioner has equally adequate and efficacious alternative remedy before the Commissioner of Central Excise (Appeals) under Sect ion 85 of the FA, 1994 - petition dismissed being not maintainable.
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2018 (3) TMI 1330
Refund of unutilized CENVAT credit - export of services - place of provision of service - Management or Business Consultant Service (MBCS) - rejection on the ground that the appellant was engaged in rendering the service under the category of “Real Estate Advisory Service” (REAS)
Whether, the activities of the appellant would come within the purview of MBCS and BAS, as claimed by the appellant; or under the category of REAS, as held by the lower authorities and that whether, the appellant should be entitled to the refund benefit under Rules 5 of the Cenvat Rules, 2004 read with Export of Services Rules, 2005?
Held that: - the appellant’s task was mainly confined to providing of advisory services in respect of investments identified by overseas client and advise it with respect of investment opportunities in the companies, who are engaged in developing the real estate projects - The definition of MBCS includes the service of any person, who renders any advice, consultancy or technical assistance in relation to financial management.
The appellant rendered the services to the overseas client as advisor of the investment opportunities in Indian company, which is clearly covered within the definition of MBCS - Tribunal in the case of AMP Capital Advisors India Pvt. Ltd. Vs. CST, Mumbai [2015 (6) TMI 122 - CESTAT MUMBAI], observed that the appellant providing advisory services to AMP capital, Australia and the service recipient using said advice received for further advising for their customers in India, would qualify for export of service.
The activities rendered by the appellant would come within the purview of “MBCS” and the appellant is entitled for the refund benefit - appeal allowed - decided in favor of appellant.
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2018 (3) TMI 1288
Levy of service tax on receipt of amount after new levy whereas the contract was Concluded before levy - whether the law came into force w.e.f. 1-7-2003 and the concluded contract which has entered prior to coming into force of the law where the taxing statute has taken place on 1-7-2003 should be taxed if the contract is concluded and the services are rendered thereafter? - Circular 65/14/2003, dated : Nov. 5, 20 F. No, B3/7/2003-TRU.
Held that: - The assessee herein has entered into a concluded Contract much prior to coming into force of Service Tax law and in view of the clarification which has been issued in 2005 which clearly made out the case for the appellant inasmuch as the legislation has now used the language after 2005 - it is very clear that prior thereto, there is authority interpretation of the provision as services which are referred to be provided in future was not covered. Even otherwise in view of the law Concluded Contract cannot be revived in view of subsequent development which will lead to a very odd situation with the assessee and he has to suffer in his business and has to face the breach of contract.
Any payment of contract which are entered after 1-7-2003 will invite Service Tax and any contract which is concluded prior to 1-7-2003 will not invite imposition of Service Tax.
Appeal allowed - decided in favor of assessee.
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2018 (3) TMI 1287
Business Support Services - appellant was engaged in providing services to ICICI Bank by way of receipt of fresh applications for sanction of loan, credit cards etc. - Department was of the view that the activity carried out by the appellant will be covered by the definition of business support services under Section 65 (105)(zzzq) of the Finance Act, 1994 which was introduced with effect from 01.05.2006 - Held that: - the appellant was under bonafide belief that the activities will be covered under the category of information technology software inasmuch as, the appellant was also required to develop the software template into which the date is to be entered. Under the circumstances, the appellant was entertaining a bonafide belief that the activities will not fall under the activity of business support service.
Further, the demand has been raised for the period immediately after the category of business support service was introduced into the statute books. Consequently, the Revenue is not justified in raising the demand by invoking the suppression clause under Section 73. Hence, the demand of Service Tax is to be restricted to that falling within the normal time limit.
Demand for normal period upheld - Adjudicating Authority is directed to re-quantify the demand - appeal allowed in part by way of remand.
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2018 (3) TMI 1286
CENVAT credit - input services - construction of immovable property - demand of service tax - notional interest on security deposit towards renting of immovable property service - Held that: - the Revenue has wrongly denied the cenvat credit on various input services which have been used for construction of immovable property which is ultimately rented out - reliance placed in the case of City Centre Mall Nashik Pvt. Ltd. Versus Commissioner of Central Excise & Service Tax, Nashik [2017 (11) TMI 301 - CESTAT MUMBAI], where it was held that the appellant is entitled to cenvat credit on input services used for construction of immovable property - credit allowed.
Demand of service tax - notional interest - Held that: - the issue is squarely covered by the judgment of the Tribunal in the case of Magarpatta Township Developers & Construction Co. Ltd. [2014 (9) TMI 461 - CESTAT MUMBAI], wherein the Tribunal has held that notional interest cannot be included in the value and will not be taxable under the category of renting of immovable property services - no service tax is chargeable on notional interest.
Appeal allowed - decided in favor of appellant.
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2018 (3) TMI 1285
Valuation - pure agent - inclusion of reimbursement of expenses - charges viz; Manpower, Telephone expense, freight on Stock Transfer, loading & unloading charges, Stationary Charges, Courier, Packing, Electricity, Office & Godown expenses - pure agent - Rule 5(2) of STR - Held that: - neither the contracts made between the appellant with service recipients nor such conditions, which were required to be specified to be a Pure Agent were not specified and spelt out in the said SCN. It was only stated that it was found by Audit Officers that the conditions of Pure Agent were not satisfied by the appellant - the allegations are bald and the SCN is not sustainable - appeal allowed - decided in favor of appellant.
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2018 (3) TMI 1284
Valuation - includibility - value of materials supplied free of cost - Held that: - it is an admitted fact that on the materials supplied by the appellant, VAT has been paid by the appellant in terms of N/N. 12/2003-ST dated 26.06.2003. Therefore, the appellant is not required to add the value of materials supplied by them in the assessable value of service provided by them - appeal allowed - decided in favor of appellant.
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2018 (3) TMI 1283
Business Auxiliary Service - booking of luggage on behalf of the bus owners - Held that: - Since the bus owners are clients of the appellant, on whose behalf booking of luggage was made, the same should fall under the taxable category of “Business Auxiliary Service.
With regard to the submission of the appellant that the service tax should be levied on the actual commission earned by the appellant, that neither there is any agreement, of any correspondence exchanged between the appellant and the bus owners providing for the actual commission payable to the appellant for providing such service. Thus, in absence of any documentary evidence, the plea raised by the appellant cannot be accepted.
Appeal dismissed - decided against appellant.
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2018 (3) TMI 1282
Man Power Recruitment or Supply Agency Service - Held that: - Since the appellant was no way connected with any recruitment or supply of manpower to the client, rather the manpower/employees were under the active control and supervision of the appellant and were deployed for undertaking the assigned job work entrusted by the principal, such service should not fall under the taxable category of „Manpower Recruitment and Supply Agency Service - appeal allowed - decided in favor of appellant.
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2018 (3) TMI 1281
GTA service - reverse charge mechanism - After collecting the amounts from their clients they pay the charges to the transporters from whom the vehicles were engaged and service tax of entire freight charges for the amounts billed by appellants is discharged by their clients under reverse charge mechanism as a recipient of GTA services - whether appellant is required to discharge the service tax liability under the category of goods transport agency or otherwise?
Held that: - The definition of a person liable to discharge service tax liability under goods transport agency is under reverse charge mechanism and has been ensigned under Section 65(50)(b) of the Finance Act 1994 read with the said Rules - service tax liability on goods transport agency services is under reverse charge mechanism more so if the consignor or consignee falls in one of the category as indicated hereinabove or a person who is liable to pay freight charges. It is on record that appellant herein does not discharge the freight charges but claims the amount from their client who pays it to the transporters from whom they engaged the vehicles.
The demands raised by the lower authorities and confirmed cannot be upheld as identical issue came up before the Tribunal in the case of Essar Logistics Ltd Vs CCE Surat [2014 (6) TMI 763 - CESTAT AHMEDABAD], where it was held that it is very clear that the legislative intent is to tax only the services provided by a Goods Transport Agent to a customer and not the owner. - Therefore, the appellant has no liability to pay the service tax.
Appeal allowed - decided in favor of appellant.
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2018 (3) TMI 1248
CENVAT credit - insurance of deposits - input services - duty paying documents - denial on the ground that insurance of deposits is not an input service for them and they have not produced the relevant documents in terms of Rule 9 (2) of Cenvat Credit Rules, 2004 - Held that: - taking insurance to protect interest of the bank being integrally connected with the business of banking, Cenvat credit of service tax paid claimed is allowable - credit allowed.
Non-production of relevant documents showing name, address, registration number of the service provider - Held that: - said documents have been produced by the appellant before the authorities below but they have not been considered - these are proper documents against which the appellant has taken the cenvat credit which are found to be correct.
Appeal allowed - decided in favor of appellant.
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2018 (3) TMI 1247
Time Limitation - grievance of the Revenue is that there is a case for suppression of material facts on the part of the respondent and impugned order should not have dropped the proceedings on limitation - Held that: - The impugned order held that seeing the accounts maintained and the nature of contracts and the correspondent with the Revenue by the respondent, there is no scope for invoking extended period - appeal dismissed - decided against Revenue.
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2018 (3) TMI 1246
Valuation - includibility - the cost towards PF. ESI and salary in the gross value - extended period of limitation - penalty - Held that: - the issue with regard to payment of Service Tax on the salary including PF and ESI of the personnel were held to be taxable by the Tribunal in the case of the appellant itself Patron Detective & Security Services Versus C.C.E., Jaipur [2014 (1) TMI 1835 - CESTAT, NEW DELHI], where the Tribunal has dismissed the appeals filed by the appellant, holding that it is liable to pay Service Tax on the salary PF and ESI paid to its personnel for providing the security service.
Since the present show cause notices were issued on 15/09/2008 and 21/08/2009, in respect of the period 2002-2007 and 2007 to 2008 respectively, A part of the adjudged demand is barred by limitation of time, having not been issued within stipulated time frame of one year from the relevant date.
Penalty - Held that: - the issue with regard to inculdibilty of the cost towards PF, ESI and salary in the gross value was highly contentious and there were divergent view by the Judicial forums - the provisions of Section 80 ibid in the case can be invoked for non-imposition of penalty under Section 76, 77 and 78 ibid - penalty set aside.
Appeal allowed in part.
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2018 (3) TMI 1245
Works contract service - rendition of works contract service pertaining to construction of residential complexes on the petitioner’s own property, developed by it for the purpose of sale to third party/ prospective purchasers, from whom the appellant collected advances - Held that: - development and construction of one’s own property would not constitute a taxable service prior to 1.7.2010 as per section 65 (105) (zzzh) of the Finance Act - reliance placed in the case of Maharashtra Chamber of Housing Industry vs. Union of India [2012 (1) TMI 98 - BOMBAY HIGH COURT] - appeal allowed - decided in favor of appellant.
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2018 (3) TMI 1244
CENVAT credit subsequently reversed - Since they were claiming the duty draw back of export of cotton fabric, the department was of the view that the appellant was liable to pay interest on such Cenvat credit from the period such credit was taken till the date on which such credit was reversed - Held that: - the decision of Apex Court in the case of Union of India vs. M/s. Ind-Swift Laboratories Ltd. [2011 (2) TMI 6 - Supreme Court], relied upon in which the Hon’ble Supreme Court has held that the interest is liable to be paid even if such credit is reversed without utilization - there is no justification for demand of interest - appeal allowed - decided in favor of appellant.
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2018 (3) TMI 1243
Business Auxiliary services - amount booked under the head “other miscellaneous income” - Department alleged that such income is received on account of various services provided by the assessee - Held that: - the argument raised by the assessee that miscellaneous income is not on account of any rendering of service but on account of sale of miscellaneous articles has been supported by the submission of Certificate issued by Chartered Accountant. But from the observations of adjudicating authority it appears that such detailed break-up of the various items under miscellaneous income as well as certificate issued by Chartered Accountant service does not seem to have been considered by the adjudicating authority.
The matter remanded to the adjudicating authority for consideration of full documents and to give detailed finding and reasoning for his conclusion - appeal allowed by way of remand.
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2018 (3) TMI 1242
Manpower Recruitment and Supply Agency Services - the parent company, M/s SIC, supplied manpower from abroad to the assessee-Appellants in India - Held that: - an identical issue has come up for consideration before the Tribunal in the case of Airbus Group India Pvt. Ltd. vs CST, Delhi [2016 (7) TMI 1209 - CESTAT NEW DELHI], where it was held that the reimbursement amount paid by the appellant to the foreign companies is relating to the cost of salaries and wages of the employees working under the appellant - appeal allowed - decided in favor of assessee-Appellants.
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2018 (3) TMI 1241
Advertising Agency Service - the appellant undertakes the activity of painting of different brands of tea in the walls of houses, belonging to different persons. For undertaking such activities, the appellant collects certain amount from the clients and paid the same to the house owners - The department entertained the view that the charges received by the appellant should be considered as gross value for the purpose of computation of the service tax liability under the taxable category of advertising agency service - Held that: - the amount of rent actually collected by the appellant from its client were paid to the house owners and the appellant never gained anything out of such rent amount received from the client. Thus, the amount of rent should not form part of gross value under Section 67 of the Finance Act, 1994 for computation of the service tax liability - appeal allowed - decided in favor of appellant.
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2018 (3) TMI 1240
Whether appellant, being a registered service provider under the category of Cargo Handling Service, needs to be taxed for an amount received by them under Port service or otherwise?
Held that: - there is nothing on record to indicate that the respondent herein were registered with Port authorities for rendering port services. In the absence of any such evidence, it has to be considered that the respondent has correctly discharged the service tax liability under Cargo Handling Service - appeal dismissed - decided against Revenue.
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