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Service Tax - Case Laws
Showing 61 to 80 of 219 Records
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2018 (3) TMI 1133
Refund claim - Whether the Central Excise and Service Tax Appellate Tribunal is justified in accepting the appeal preferred by the assessee irrespective of the fact that the conditions referred in the N/N. 41/2007-ST dated 06.10.2007 and 451/2007-ST dated 06.10.2007 have not been adhered?
Held that: - considering the fact that the case has been remitted at the request of learned representative of the Department itself, therefore, the substantial questions of law, which have been framed in these appeals while admitting the appeals, are not required to be answered because the matter has been remitted to the original adjudicating authority for deciding the case afresh, therefore, obviously now it is the duty of the adjudicating authority to consider the said notification.
The matter is remitted by the Customs/Excise & Service Tax Appellate Tribunal, New Delhi for decision afresh.
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2018 (3) TMI 1132
Woks contract services - period from 2009-10 to 2010-11 for which SCN dated 19/10/2012 was issued - extended period of limitation - Held that: - the earlier SCN dated 07/04/2010 was issued invoking the suppression clause under Section 73 of the Act covering the period 2004-05 to 2008-09 - the crux of the issue raised in the present proceedings is no different from that in the earlier proceedings. All the issues remain the same. Even the respective contracts, received by the appellant were from the same organizations for similar kind of construction work - the Department is not justified in invoking the suppression clause once again in the second show cause notice.
The demand raised in the SCN dated 19/10/2012, on the same grounds as the earlier SCN dated 07/04/2010 has to be restricted to the normal time limit.
Matter remanded to the adjudicating authority for de novo decision on merit for the period falling within the normal time limit - appeal allowed by way of remand.
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2018 (3) TMI 1131
Extended period of limitation - suppression of facts - CENVAT credit - GTA Service - Held that: - from the ST-3 Returns filed by appellant, it is found that nowhere it had stated that input services with regard to disputed GTA service was received by them during the relevant period for the trading activities. Therefore, the Department was not aware about taking of irregular credit by the appellant - Since, the Department acquired the knowledge about taking of irregular credit during the course of audit of books of accounts, and thereafter the SCN was issued within one year from the relevant date, the same is not barred by limitation of time - appeal dismissed.
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2018 (3) TMI 1130
CENVAT credit - area based exemption - before start of production, the appellant filed another declaration on 29.06.2007, to the effect that, the appellant have no intention to manufacture any goods but want to let out their premises on lease for further use in manufacturing of intended goods - Held that: - The similar issue in the case of S.T. Cottex Exports Pvt. Ltd. [2011 (1) TMI 491 - PUNJAB & HARYANA HIGH COURT], wherein the assessee initially started manufacturing exempted goods. But in the same year, they started manufacturing dutiable goods also. In that case, the Hon’ble High Court of Punjab and Haryana held that the assessee is entitled to avail cenvat credit.
Extended period of limitation - Held that: - As the show cause notice has been issued by invoking extended period of limitation, the extended period of limitation is not applicable.
Appeal allowed in part.
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2018 (3) TMI 1129
CENVAT credit - inputs/capital goods used for setting up of towers and pre-fabricated buildings - scope of SCN - Held that: - as the said provisions under Rule 10 have not invoked in the show-cause notice. Therefore, findings of the learned adjudicating authority in the impugned order are contrary to the allegation in the show-cause notice - the adjudicating authority has gone beyond the show-cause notice, which is not permissible on that count also demand is not sustainable.
Appeal allowed - decided in favor of appellant.
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2018 (3) TMI 1128
Demand of differential duty - it was alleged that appellant has not provided CA certificate or records for verification whether there was factual error in entering the correct data in ST -3 return or not - Held that: - In the impugned order learned Commissioner (Appeals) has recorded a finding that appellant has not provided any documents in support of their claim. The impugned order was passed on 31.7.2017 whereas all the relevant documents had been produced before the Commissioner (Appeals) on 5.7.2017 - As appellant has filed the relevant documents for verification or examination by the learned Commissioner (Appeals) on 5.7.17 whereas the impugned order has been passed thereafter after 26 days which shows that the learned Commissioner (Appeals) did not bother to consider the documents filed by the appellant which is his duty and bound to do so - the impugned order deserves no merits, hence, same is to be set aside.
Demand of interest for the intervening period from the date of presentation of cheque till its realization - Held that: - as per Rule 6 (2A) of the Service Tax Rules, 1994, the date of presentation of cheque is the date of payment of Service tax - date of presentation of cheque is the date of payment of service tax. In these circumstances, demand of interest is not sustainable against the appellant.
As learned Commissioner (Appeals) has not taken into consideration the documents filed by the appellant, in that circumstances, the matter needs examination at the end of learned Commissioner (Appeals) to examine the documents - appeal allowed by way of remand.
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2018 (3) TMI 1127
CENVAT credit - input/input service/capital goods used for constructing the mall - denial on the ground that the mall is a immoveable property - Held that: - the CENVAT credit is admissible in respect of input service and capital goods used for construction of mall against renting of mall on which service tax was paid - in City Centre Mall Nashik Pvt. Ltd. [2017 (11) TMI 301 - CESTAT MUMBAI] wherein the identical facts and the law point was involved, where the cenvat credit in respect of the inputs used for construction of mall was allowed.
The appellant have shown the entire credit as opening balance of the April 2011 whereas in the month of March 2011 the closing balance was nil - whether the appellant is entitled for the credit in respect of inputs, input service and capital goods received and used prior to 1.4.2011 for construction of mall? - Held that: - it is only a clerical error on the part of the appellant in making entry of CENVAT credit which was otherwise admissible to them. Even if the entry of CENVAT credit on individual services are made on the date of receipt or the consolidated amount for the said credit was shown as opening balance of credit of April 2011 so long there is no dispute about the amount of the credit. CENVAT Credit cannot be denied only for such clerical error.
The appellant is not entitled for cenvat credit, in respect of input however they are entitled for cenvat credit in respect of input service and capital goods, accordingly the adjudicating authority may re quantify the demand - appeal allowed by way of remand.
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2018 (3) TMI 1126
Supply of tangible goods service for use - principles of Natural Justice - Held that: - the very crucial issues such as equipments are used by the appellant on their own, the nature of transaction such as supply of water by water tank, the SSI exemption Notification No.6/2005-ST dated 1.3.2005 were not considered either by the original authority or by the Commissioner (Appeals). Therefore, on these aspects, the matter needs to be reconsidered.
Time Limitation - Held that: - there is suppression of fact on the part of the appellant - extended period rightly invoked.
Appeal allowed by way of remand.
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2018 (3) TMI 1060
Rejection of VCES Scheme - learned Commissioner (Appeals) held that the letter dated 8th February 2013 by the Range Superintendent is not an enquiry or an investigation for the purpose of Section 106(2) of the Voluntary Compliance Encouragement Scheme 2013, and thus the respondent is eligible for VCE Scheme, 2013 - invocation of proviso to Section 106(2) (iii) of VCES Act, 2013 - whether the issuance of letter dated 08/02/2013 by the Range Superintendent seeking some information will construe a part of the investigation which bar the respondent from opting from VCES scheme?
Held that: - if the investigation under Section 14 of Central Excise Act, 1944 and 72 of Finance Act, 1994and Rule 5A of Service Tax Rules, 1994 is conducted then only the case falls under the category whether of enquiry or investigation as envisaged under Section 106(2)(a)(iii) of Finance Act, 2013 - In the present case the letter issued by the Range Superintendent seeking information does not fall in any of the provisions of Section 14 of Central Excise Act, 1944 and 72 of the Finance Act, 1994 and/or Rule 5A of Service Tax Rules, 1994 - the Commissioner (Appeals) has rightly observed that the letter dated 08/02/2013 issued by the Range Superintendent cannot be construed as enquiry or investigation which debar the respondents from VCES scheme.
Appeal dismissed - decided against Revenue.
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2018 (3) TMI 1059
Business Auxiliary services - appellant contends that despite depositing the tax amount during investigation they challenge the taxability as they do not provide any taxable service - Held that: - the Port Trust has engaged the services of the appellant and that appellant is in receipt of consideration from the Port Trust. In these circumstances, the existence of third party in transaction, which is a necessary element for coverage u/s 65 (105) (zzb) read with section 65(19) of Finance Act, 1994, is questionable - Tribunal in Golden Handling Works [2017 (12) TMI 165 - CESTAT NEW DELHI] is categorical in requiring the assessing authority to determine the specific characteristic of the service which is a necessary pre-requisite for fastening liability - appeal allowed - decided in favor of appellant.
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2018 (3) TMI 1058
Maintainability of appeal - delay in filing appeal - time limitation - Held that: - It is apparent that there is no lapse on the part of the appellant. Nevertheless, the law prescribes that appeal should be filed within a period of two months from the date of receipt of the order that is impugned and that a delay of thirty days beyond that is condonable at the discretion of the appellate authority. As the appellant was led to believe that there was no delay, the scope for exercise of condonation did not exist.
The appeal filed before the Commissioner (Appeals) stands restored - appeal allowed.
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2018 (3) TMI 1012
Interim stay on the payment of the disputed tax liability - the decision in the case of M/s N.V. Marketing Pvt. Ltd. Versus CST, Delhi [2017 (11) TMI 1406 - CESTAT NEW DELHI] contested upon - Held that: - there will be interim stay on the payment of the disputed tax liability subject to the condition that the appellant gives a bank guarantee for the amount of the disputed liability.
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2018 (3) TMI 1011
Interpretation of statute - commercial training or coaching services - it was alleged that since the training courses conducted by IIPM do not result in award of any certificate/ Diploma/ Degree or any other educational qualification recognized by the law being in force, the activity will fall under the category of Section 65 (105) (zzc) of the Act and is a taxable service liable to payment of Service Tax - Held that: - there is no scope to exclude “Academic Courses”, conducted by IIPM from the purview of Service tax levy. The exclusion provided in Section 65 (27) is available to any institute or establishments which issues any certificate or any educational qualification recognized by law for the time being in force. But it is an admitted position that the certificates and degrees awarded by IIPM and also by IMI, Europe do not enjoy the recognition from AICTE or UGC. These facts have been declared by IIPM in their prospectus and advertisements and such facts have been admitted by the Dean of IIPM in his statements before the investigating authorities - IIPM clearly falls under the definition of Commercial Training or Coaching Centre as defined in law Section 65 (27) and the services rendered by them are liable to Service Tax.
Time limitation - whether extended period of time could be invoked in the present case for confirmation of Service Tax demand? - Held that: - It is on record that IIPM neither took registration nor registered themselves with Department up to 22/07/2005. On the said day the registration was taken only at Bangalore even though IIPM has Institutes in many other places. They also did not pay any Service Tax or file ST-3 Returns even though the tax on Commercial Training or Coaching Centre was levied w.e.f. 01/07/2003 - Since they have failed to obtain registration or file returns or even intimate the Department of the activities undertaken, the Department is fully justified in issuing show cause notice to demand of Service Tax along with interest by invoking the extended period of time - extended period rightly invoked.
Demand upheld - appeal allowed - decided in favor of Revenue.
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2018 (3) TMI 1010
Construction of residential complex - whether construction of residential complex will come within the definition of personal use figuring in the Explanation under section 65(91a) of the Finance Act, 1994? - Held that: - It is evident from the facts of the case that M/s.Lanco has engaged the assessee with the specific purpose of construction of such residential units which are meant for personal use of the employees of M/s. Lanco.
The statutory definition of section 65(91a) of the Finance Act, 1994 specifically excludes construction undertaken for personal use and such personal use includes permitting the complex for use as residence by another person - the above exclusion clause covers the construction activity undertaken by the assessee.
Appeal dismissed - decided against Revenue.
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2018 (3) TMI 1009
Business Auxiliary Service - reverse charge mechanism - demand on the premise that the appellant did not get registered themselves under the Business Auxiliary Service by issuance of the show cause notice dated 24.04.2009 by invoking extended period of limitation - Held that: - the Hon’ble High Court observed in the case of Indian National Shipowners Association V. Union of India [2008 (12) TMI 41 - BOMBAY HIGH COURT], that the extended period of limitation is not invokable.
As the extended period of limitation is not invokable, no penalty is imposable on the appellant.
Appeal disposed off.
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2018 (3) TMI 1008
CENVAT credit - capital goods not sold as scrap - Held that: - These documents are undoubtedly relevant to arrive at proper conclusion on this issue and, therefore, need to be examined first by Ld. Commissioner (Appeals). Besides, the findings of the Commissioner (Appeals) are very terse and restricted to simply endorsing the order of the adjudicating authority without giving any kind of analysis on the submissions of the appellant made before him and the case laws cited by the appellant. Such an order, which lacks judicial analysis of the contentions of the appellant, does not do justice to any of the sides. Hence, the matter requires to be re-adjudicated by the Ld. Commissioner (Appeals), who should give proper findings on averments and documentation furnished by the appellant in their defence.
Utilization of excess Cenvat credit of basic custom duty - Held that: - The appellant had not shown the Cenvat credit of BCD, CVD and Cenvat duty separately in their register. On this issue too, the Ld. Commissioner (Appeals) has given no finding at all in his order and simply upheld the order of the adjudicating authority - matter requires reconsideration.
Appeal allowed by way of remand.
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2018 (3) TMI 1007
Valuation - inclusion of amount of discount given to PCO operators - whether the assessee has to discharge service tax on the entire amount collected by the PCO operator from the PCO user (customer)? - Held that: - Prior to 1.6.2008, the appellant BSNL was discharging service tax on the basis of metered calls of the PCO recorded in the exchange. Thus PCO operators were allowed to charge Re.1 per MCU and this Re.1 comprised of Re.0.11 towards service tax and balance ₹ 0.89 towards commission payable to operators and revenue share of BSNL. After 1.6.2008, though Re.1 per MCU remained the same, the nature of payment to PCO operator was changed by providing a slab basis / defined rates. Thus for Re.1 collected by PCO operator, he retained Re.0.30 and Re.0.40 and paid Re.0.70 and Re.0.60 to BSNL upon which BSNL discharged the service tax. According to department, Re.0.30 and Re.0.40 in the nature of discount given to PCO operator should be included for levy of service tax.
In Bharti Infotel Ltd. [2005 (7) TMI 3 - CESTAT, New Delhi], it was decided that such commission / discount cannot be included in the value for levy of service tax.
N/N. 2/2011-ST dt.1.3.2011 has inserted an Explanation in Rule 5, clause (1) of Service Tax (Determination of Value) Rules, 2006, which says that W.e.f. 1.3.2011, the value of taxable services in sub-clause (zzzx) of clause 105 of Section 65 namely the telecommunication services, shall be the gross amount paid by the person / PCO user to whom the telecom service is provided by the telegraph authority. The said amendment makes it clear that w.e.f. 1.3.2011, the value of taxable service would include the total amount collected by the PCO operator - since it is specifically stated that the said notification shall be effective only from 1.3.2011, the period involved in the present case being prior to 1.3.2011, the demand of differential amount of service tax alleging that entire amount collected by the PCO operator is subject to levy of service tax cannot sustain.
Appeal allowed - decided in favor of assessee.
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2018 (3) TMI 1006
Classification of services - Maintenance and Repair services - Business Support Service - Business Auxiliary Service - Whether the activity undertaken by M/s. Xerox for various contracts for Maintenance and Repairs do qualify as Maintenance or Repair Service, or not? - Held that: - It is a fact that appellant is engaged in the activity of Maintenance and Repair of equipments supplied by them under various contracts. M/s. Xerox is required to replace the parts and accessories at the time of repair or maintenance - these are the Works Contracts and M/s. Xerox is paying VAT on the portion of materials supplied - M/s. Xerox is liable to pay service tax only on Labour Portion.
Whether the service namely, XGS shall qualify under 'Business Support Service' or Business Auxiliary Service or under Works Contract service? - Held that: - the appellant is engaged in the activity of printing of bill and not Billing . Therefore, the said printing of bill is altogether a different activity from the billing and cannot be termed as Billing - the services in question do not qualify under the category Business Auxiliary Service.
Whether the activities undertaken by M/s. Xerox under various contracts of Maintenance and Repair Service and Business Support Service are properly classifiable under Works Contract or not? - Held that: - The said issue has been examined by the Hon’ble Apex Court in the case of Larsen & Toubro Limited [2015 (8) TMI 749 - SUPREME COURT] wherein it has been held that prior to 01 June 2007, if the services have been provided along with material and the value of material supplied cannot be vivisected, in that circumstance, the appropriate classification of the service shall be Works Contract service and the same was not taxable prior to 01.06.2007. Therefore, for the period prior to 01.06.2007, no demand is sustainable under the category of Maintenance and Repair Service/ Business Support Service/ Business Auxiliary Service for the activity undertaken by M/s. Xerox as the services of Business Support Service and Maintenance and Repair along with material and the agreement cannot vivisect the amount of material supplied by M/s. Xerox.
For the period post 01.06.2007, the Maintenance and Repair and XGS services are under Works Contract, whether the services under Works Contract is taxable or not? - Held that: - for the first time Section 65 (105) (zzzza) set-out to tax the service as Works Contract service for levy of service tax on the works executed along with the material - there is no merit in the impugned order demanding service tax from M/s. Xerox under the category of Maintenance and Repair Services/ Business Support Service.
As no demand is sustainable on M/s. Xerox therefore demand of interest and penalties are also set-aside.
Appeal dismissed - decided against Revenue.
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2018 (3) TMI 1005
Man power recruitment or supply agency services or not - whether the activity of bagging and shipping work executed by the appellant as per the contract for bagging and shipping amounts to supply of man power or not? - Held that: - The scope of the work is to execute bins filing, bagging, stitching, handling and dispatch of finished product on round the clock basis. The rates are fixed on tonnage basis. Thus it is seen from the contract that the work involves bagging and shipping of finished products. There is nothing in the contract to show that the appellant has any obligation to supply man power. Instead the contract speaks of execution of work. The employees are under the control and supervision of appellants for executing the work and not under the supervision of MFL. The appellant has discharged the statutory obligations of his workers which shows that they worked on behalf of appellant. The consideration is not paid by MFL on the basis of the number of persons employed but on the basis of work executed.
A similar issue was analyzed by the Tribunal in the case of Bhaghyashree Enterprises [2017 (3) TMI 786 - CESTAT MUMBAI] wherein the Tribunal had held the issue in favour of the assessee holding that such lump sum work order can be considered as job work activity. - amounts received by the appellant cannot be taxed under the category of Man Power Recruitment or Supply Services.
Outdoor Catering Services - benefit of N/N. 1/2006-ST - Held that: - this issue can be remanded to the adjudicating authority so as to give the appellant further opportunity to furnish documents in order to claim the abatement in terms of N/N. 1/2006-ST - matter on remand.
Appeal allowed in part and part matter on remand.
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2018 (3) TMI 1004
Refund claim - sub-contractor - whether the appellants being sub-contractors are entitled to refund of service tax paid on Construction Services used in the construction of the building for institute of Kidney Disease & Research Center, when the original contract awarded to the main contractor, M/s Malini Constructions?
Held that: - both the sub-contractor as well as the main contractor engaged in providing works contract service during the relevant period for carrying out the above construction work would be eligible to the exemption.
The Ld. Commissioner (Appeals) upheld the rejection of refund claim on the ground that the appellants had not established the fact that they had provided works contract service to the main contractor i.e. M/s Malini Constructions during the relevant period - the fact remains to be scrutinized is whether the appellants had provided works contract service to M/s Malini Constructions, and accordingly, eligible to claim refund of service tax paid during the said period.
Appeal allowed by way of remand.
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