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Service Tax - Case Laws
Showing 21 to 40 of 29325 Records
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2024 (5) TMI 127 - CESTAT CHENNAI
Non-payment of service tax - Renting of Immovable Property services - Management, Maintenance and Repair services - Business Auxiliary Services.
Levy of service tax - Renting of Immovable Property services - whether the demand of service tax cannot be sustained for the reason that the premises has been let out by appellant for conduct of guest rooms/accommodation? - HELD THAT:- The lease deed clearly shows that the premises is to be exclusively used for guest rooms and connected facilities like kitchen, dining room, parking spaces only. The demand of service tax cannot sustain when the premises is rented out for the purpose of accommodation and related activities. It is therefore held that the demand cannot sustain and requires to be set aside - demand set aside.
Levy of service tax - Business Auxiliary Services - nature of activity - sale or service - transfer of percentage of holding to joint venture partner - HELD THAT:- The transaction is nothing but sale of shares and there is no situation of providing services to M/s. Ascott (Mauritius) .The Tribunal in the appellant's own case M/S. RATTHA HOLDING CO. PVT. LTD. VERSUS COMMISSIONER OF CENTRAL SERVICE TAX, CHENNAI [2018 (9) TMI 1722 - CESTAT CHENNAI] had considered the very same issue and held that the demand cannot sustain as there is no provision of services - the demand under Business Auxiliary Services requires to be set aside.
Levy of penalty - appellant has paid the service tax along with interest before passing the adjudication order - Management, Maintenance and Repair services - HELD THAT:- Taking note of the submission made by the Ld. Counsel for the appellant that the amount of service tax under this category along with interest has been paid before passing of the adjudication order, the penalty imposed in this regard is set aside.
The impugned order is modified to the extent of setting aside the demand, interest and penalties imposed under Renting of Immovable Property and Business Auxiliary Services as discussed above. The demand and interest under Management, Maintenance and Repair Service is upheld. The penalty on this count is set aside. The appeal is partly allowed.
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2024 (5) TMI 74 - CALCUTTA HIGH COURT
Time Limitation for filing returns - revised returns filed on 14.08.2009 under Rule 7B of the Service Tax Rules, 1994 are within time or not - second SCN issued on same set of facts as first SCN - Whether the Learned Tribunal has committed the gross error by not appreciating that the revised return was filed on 14.08.2003 which is beyond the stipulated period and as such the taxable value mentioned in original ST-3 returns is to be considered as correct or not?
HELD THAT:- The cases where the Returns are not submitted within 90 days are dealt with in Rule 7(3), which stipulates that where the return prescribed under Rule 7B is furnished after the date prescribed for submission of such return, the person liable to furnish the said return shall pay to the credit of the Central Government a certain sum of money which is stipulated under said Rule considering the period of time. Therefore, the ST-3 return which was filed by the assessee on 22nd May, 2009 cannot be ignored by the department and the last date for filing the revised Return ought to be calculated from the said date and if the same is done, revised Return filed on 14th August, 2009 is well within time.
It must also be noted that there is an earlier show cause notice issued to the assessee dated 8th April, 2010. The said show cause notice is one of the relied upon documents in the show cause notice dated 21st September, 2010, which is the subject matter of this case. Based on an audit report, it was pointed out that the assessee has himself interpreted Rule 3 and 4 of the Rules. This was taken into consideration by the assessee and the assessee rectified the mistake, reversed the credit which was availed and also paid the interest at the applicable rate. The aspect clearly brought out by the assessee in their response to the show cause notice vide a reply dated 27th October, 2010.
The contention of the assessee that the second show cause notice issued on the same set of facts which was very much available with the department when the show cause notice dated 8th April, 2010 was issued, would be a sufficient ground to hold that the show cause notice issued which was ultimately culminated in the Order-in-Original dated 10th February, 2011 could be held to be barred by time.
The learned Tribunal has taken note of the undisputed facts that too from the order-in-original as passed by the adjudicating authority and granted relief to the assessee - no questions of law, much less substantial question of law, arising for consideration in this appeal - Appeal dismissed.
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2024 (5) TMI 73 - CESTAT ALLAHABAD
Exemption from Service tax - services provided to SEZ units - conditions of N/N. 9/2009-ST dated 31.03.2009, N/N. 17/2011-ST dated 01.03.2011, N/N. 40/2011-ST dated 20.06.2011 and N/N. 12/2013-ST dated 01.07.2013 fulfilled or not - It is the case of the Appellant that since all the documents were resumed by the Officers of Service Tax Department at the time of search of the premises of the Appellant on 13.01.2015, including A-1 Forms also, the Appellant could not produce the same before the learned Commissioner (Appeals).
HELD THAT:- There is no dispute that the services have been provided to “SEZ units”; “SEZ units to whom services have been provided were duly authorized by UAC to receive certain services without payment of Service Tax for use in the authorized operations”; “SEZ units were issued duly approved list of specified services in proper prescribed form”; there is no dispute that the services provided by the Appellant were used in authorized operations of recipient SEZ units.
The Hon'ble Supreme Court has consistently held that the eligibility clause of exemption Notification has to be given strict meaning of which the Notifications should be interpreted in terms of its language and once an Assessee satisfies the eligibility clause, the exemption clause may be construed liberally. Thus, an eligibility criteria deserves a strict construction, although construction of a condition thereof may be given a liberal meaning - Hon”ble Supreme Court in the case of COMMISSIONER OF CUSTOMS (IMPORT) , MUMBAI VERSUS M/S. DILIP KUMAR AND COMPANY & ORS. [2018 (7) TMI 1826 - SUPREME COURT] held that 'If exemption is available on complying with certain conditions, the conditions have to be complied with. The mandatory requirements of those conditions must be obeyed or fulfilled exactly, thought at times, some latitude can be shown, if there is failure to comply with some requirements which are directory in nature, the non-compliance of which would not affect the essence or substance of the notification granting exemption.'
Since there was substantial compliance of substantive clause of the Notifications in question, the Appellant is entitled to exemption from payment of Service Tax in respect of services provided by the Appellant to SEZ units/Developers - the impugned order is set aside - appeal allowed.
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2024 (5) TMI 72 - CESTAT HYDERABAD
Refund in cash in respect of certain amount of service tax - appellant had not carry forward the credit of the said amount in accordance with the provisions under Section 140 of CGST Act 2017 and Rules made thereunder - reverse charge mechanism - Section 142(3) of the Act read with Section 11B of the Central Excise Act 1944 - HELD THAT:- The perusal of CCR under the existing law clearly brings out that the refund of unutilized cenvat credit can be made only for specific purpose under Rule 5, 5A and 5B, subject to certain prescribed/notified procedure, conditions and limitations etc., as may be specified or notified by notification. Also, it is obvious that there is no provision for refund of CENVAT credit either under CCR 2004 or Finance Act 1994 for service tax paid correctly, which in any case has not been disputed by the appellant. They have also admittedly not filed any revised ST-3 within the specified tax limit as would have been otherwise required under Section 142(9)(b).
Essentially when there is no provision in the law either under the Cenvat Credit Rules 2004 or in the Finance Act 1994 to allow cash refund, for such accumulated credit, Section 142(3), per se, cannot make it an eligible refund merely because the appellant have not been able to utilize on the ground of not having filed the revised return or were not able to take the TRAN-1 route etc., within specified time.
It is observed that in the case of Banswara Syntex Vs CCE [2018 (10) TMI 1064 - RAJASTHAN HIGH COURT], the Hon’ble Division Bench of Rajastan High Court held that refund of accumulated unutilized credit on account of education cess and secondary and higher secondary education cess was not entitled for cash refund in view of their having no provision under the Act of 1944.
There is no infirmity in the Order passed by the Commissioner (Appeals) upholding the Order of the Original Authority, who had rejected the claim of refund in cash filed by the appellant. Accordingly, the appeal filed by the appellant is liable to be dismissed.
Appeal dismissed.
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2024 (5) TMI 71 - CESTAT HYDERABAD
Short payment of service tax - rental income received from educational institution during 2014-15 - non-submission of material proof like invoices, bills etc. - assessee could not give details of exemption claimed and the fact that they were not mentioned in the returns filed nor any invoice/documents were provided to the audit team - N/N. 25/2012-ST was substituted by N/N. 06/2014-ST with effect from 11.07.2014 - suppression of facts or not - Extended period of Limitation - penalty u/s 78 of FA - HELD THAT:- On going through notification it is clear that the exemptions were not available during this period even though it was otherwise available prior to the period and even after the subsequent period. It is also found that the show cause notice has not given clear break up of various incomes which were received as income arising out of “services provided by the appellant” nor they have given any specific applicable rate of duty or exemption under which they were either liable to service tax or otherwise exempted.
The mere perusal of the show cause notice shows that it has not brought categorically the grounds on which the demand was proposed. Further, it is an admitted fact that they were not liable to service tax prior to this demand period or subsequent to this demand in terms of extent notifications. Under this condition, there could have been a bonafide belief that they were not liable to pay service tax. Further, merely because they were raising the invoices in the same old fashion it does not make them defaulter who deliberately and intentionally, despite knowing the fact that they were liable to pay service tax, chose not to pay service tax. No such details or grounds to the contrary have been brought in the show cause notice for invoking proviso to Section 73.
Proviso to Section 73 provides that the demand can be raised even beyond the normal period of 30 months, but within 5 years, where the service tax has not been levied or paid etc., by fraud, willful misstatement, suppression of facts, contravention of any provision of the chapter or the rules made therein with intent to evade payment of service tax - In the facts of the case, proviso to Section 73 is not applicable and therefore extended period cannot be invoked for demanding service tax on the rental income during the material period in 2014-15 as the show cause notice has clearly been issued after 30 months from the given date. Therefore, the demand is clearly time barred. Since the demand is already time barred and no deliberate suppression etc., is invokable in the facts of the case, the penalty is also not leviable under Section 78.
The appeal is allowed.
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2024 (5) TMI 70 - CESTAT BANGALORE
Reversal of proportional CENVAT Credit - trading activity - exempt services - respondent had neither maintained separate inventory nor had opted in terms of Rule 6(2) of CENVAT Credit Rule (CCR), 2004 - HELD THAT:- If the manufacturer or provider of service had failed to exercise the option under sub-rule 6(3) of the CCR, 2004 will be allowed to pay the proportionate credit along with the interest at the rate of 15% per annum from the due date for payment of amount till the date of payment. Hence the appellant is eligible for the benefit of reversing the proportionate credit only if it is done along with interest as per law. As per Rule 6(3) of the CCR, 2004 the appellant in the first place is not eligible to avail credit on exempted products. For the benefit of the taxpayers where common credit is availed on both dutiable and exempted goods/services, certain provisions are enabled for the convenience of the taxpayer to ensure that credit is taken only on the dutiable products/services.
In the present case, the Commissioner while allowing payment of proportionate credit as per Rule 6(3A), with regard to interest holds that interest is not liable to be paid since sufficient balance was available in their account. The Commissioner has failed to notice that Rule 6(3A) is only an option given to the appellant allowing reversal of credit at a later date only if it is paid along with interest.
The reliance placed by the Commissioner on the decision of the Hon’ble High court of Karnataka in the case of CCE, ST & LTU Bangalore vs Bill force Ltd. [2011 (4) TMI 969 - KARNATAKA HIGH COURT] is misplaced since the facts of that case was excess availment of credit which was unutilized and reversed. The present case is clearly distinguishable as it is allowing the option of proportionate reversal of credit provided the reversal happens along with interest.
The Commissioner’s order with regard to confirmation of service tax demand of Rs.1,14,64,277/- upheld - Revenue’s appeal with regard to demand of interest is upheld - interest is to be paid on the above demand of Rs.1,14,64,277/- in terms of Rule 6(3A) of the Cenvat Credit Rules, 2004.
Revenue’s Appeal is allowed only to the extent of demand of interest.
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2024 (5) TMI 69 - CESTAT MUMBAI
CENVAT Credit - Credit availed on the basis of bogus invoices issued by Automobile dealers - whether assessment to tax at the hands of the service providers end can be questioned at the hands of service receiver? - HELD THAT:- On going through the case record and perusing the order passed by this Tribunal in respect of the Appellant for the first showcause notice since this notice is based on statement of demand issued in pursuance to the said show-cause notice.
As could be noticed, this Tribunal has taken note of those statement of employees of motor vehicle dealers as discussed in another case namely M/S. CHOLAMANDALAM MS GENERAL INSURANCE CO. LTD. VERSUS THE COMMISSIONER OF G.S.T. & CENTRAL EXCISE, CHENNAI [2021 (3) TMI 24 - CESTAT CHENNAI], while passing the order and it had relied upon the judgements passed by this Tribunal in Modular Auto Ltd. Vs. CCE [2018 (8) TMI 1691 - MADRAS HIGH COURT] and given the findings that assessment to tax at the hands of the service providers end can’t be questioned at the hands of service receiver (Appellant in this case).
The order passed by the Commissioner of Central GST, Audit-I, Pune is hereby set aside - appeal allowed.
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2024 (5) TMI 68 - CESTAT KOLKATA
Time limitation - SCN issued by invoking the extended period of limitation - interpretational issue - Penalty - HELD THAT:- For an earlier period in the appellant’s own case, this Tribunal has already decided the issue on merits against them and the present proceedings are by way of a periodical Show Cause Notice issued to them for the period from July 2004 to March 2007 issued on 30th March, 2009, which is highly time-barred.
The whole of the demand impugned herein is barred by limitation - As the demand is not sustainable against the appellant, no penalty is imposable in the facts and circumstances of this case.
The impugned order is set aside - appeal allowed.
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2024 (5) TMI 12 - MADRAS HIGH COURT
Levy of service tax - Renting of immovable property service - a “person” within meaning of Finance Act, 1994 as it stood prior to 01.07.2012 or not - period prior to July 2012 as well as post 01.07.2012 - HELD THAT:- The issue decided in the case of CUDDALORE MUNICIPALITY VERSUS THE JOINT COMMISSIONER OF GST & CENTRAL EXCISE, THE ASSISTANT COMMISSIONER OF CENTRAL EXCISE & SERVICE TAX AND VIRUDHACHALAM MUNICIPALITY VERSUS THE ASSISTANT COMMISSIONER, OFFICE OF THE ASSISTANT COMMISSIONER OF GST AND CENTRAL EXCISE, CUDDALORE [2021 (4) TMI 500 - MADRAS HIGH COURT] where it was held that 'though under Rule 2(1)(d)(E) of the Service Tax Rules, 1994, service tax is payable by the service provider, it has to be held that if such services are provided by a Government or Local Authority, they are exempted under Section 65D(1)(a) of the Finance Act,1994 as amended and as in force from 01.07.2012. Only ancillary service provided by a third party towards renting of immoveable property of a non-governmental or local body will be liable to pay service tax like any other service provider. Therefore, service tax is payable by the service provider himself.'
The writ petition is allowed.
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2024 (5) TMI 11 - MADRAS HIGH COURT
Challenging the validity of show cause notice (SCN) - Recovery of Swachh Bharat Cess - service provided by the petitioner by putting in rail linings - exempted in terms of Sl.No.14(a) to Mega Exemption Notification No.25/2012-ST dated 20.06.2012 as amended by Notification No.6/2015-ST dated 01.03.2015 or not - HELD THAT:- This Writ Petition is premature and is therefore liable to be dismissed. The second respondent has issued the detailed Show Cause cum Demand Notice which may indicate the predisposition of mind in the said notice. The petitioner shall therefore file a detailed reply giving reason as to why the petitioner should not be held liable to pay the service tax for the service rendered by him by putting up the rail linings in the premises of the third and fourth respondents on behalf of the fifth and sixth respondents.
This Writ Petition stands disposed of.
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2024 (5) TMI 10 - CESTAT CHENNAI
Eligibility to make adjustment of excess service tax paid against future service tax liability - Appellant raised three supplementary invoices due to increased packing costs for their customer. However, the customer rejected these invoices, leading the appellant to revise their claims and submit a revised invoice. - Only reason for rejecting the appeal by the Lower Appellate Authority is that the appellant has filed a refund claim for the entire excess tax paid on the 3 supplementary invoices originally raised - HELD THAT:- It is to be observed that the appellant could not have filed refund claim for the full excess service tax paid and simultaneously used a part of the excess service tax paid towards service tax liabilities in subsequent months.
It is also noted that the appellant has submitted the refund claim under Section 11B of the Central Excise Act, 1944, as made applicable to Finance Act, 1994. This refund claim was rejected by the Original Adjudicating Authority on the ground that the appellant has adjusted a part of the credit taken. On appeal, the Commissioner (Appeals) vide Order-in-Appeal No. 594/2018 dated 19.12.2018, had rejected their appeal upholding the Order-in-Original, which was remanded by the CESTAT for denovo consideration. The stage at which these proceedings are pending is not coming out from the facts in this appeal.
The decision of the Lower Appellate Authority affirmed holding that the appellant is eligible for adjustment of the service tax liability on the subsequent supplementary invoice raised against the excess service tax paid on the original supplementary invoices which were not paid by their customer Viz., M/s. Tata Steel Limited. It is found that the appellant has submitted Chartered Accountant’s Certificate to the effect that they have cancelled 3 supplementary invoices raised originally and that they have not received any consideration in respect of these invoices.
The impugned Order-in-Appeal is not sustainable and ordered to be set aside - Appeal allowed.
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2024 (5) TMI 9 - CESTAT AHMEDABAD
Nature of activity - manufacture or service - Activity amounting to manufacture or not - crushing of lumps - time limitation - HELD THAT:- As per the Section 2(f) from the sub-clause (ii) of Section 2(f), it is clear that in relation to any goods in the section or Chapter notes if the activity is specified as amounting to manufacture is resultant goods will qualify as manufactured goods. In the present case also as per Chapter Note i2) under Chapter 25, the crushed ground powdered form of the product covered under chapter heading 2501, 2503 and 2505 is a manufacturing activity. Therefore, the appellant’s activity is clearly a manufacturing activity.
Support derived for the case of SN. SUNDERSON (MINERALS) LTD. VERSUS SUPTD. (PREVENTIVE), C. EX., INDORE [1994 (3) TMI 111 - HIGH COURT OF MADHYA PRADESH] where it was held that the operation of crushing brings into existence a new product which has a different name, character and use. Process in this case is `manufacture' of lime stone chips which are excisable goods liable for duty under Chapter 25 of the Central Excise Tariff Act, 1985 at the rate of 12 per cent. The Collector, Central Excise, is right in levying duty on lime stone chips.
From the above, it can be seen that any activity that amounts to manufacture of excisable goods is excluded from the definition. As discussed above, we arrive at a conclusion that the crushing of lumps into powder is an activity amounts to manufacture, when this being so, the manufacturing activity is excluded from the definition of Business Auxiliary Service, therefore, no service tax under the said head shall sustain.
Time Limitation - HELD THAT:- Considering the nature of the goods, the demand for the extended period was set aside in various cases - reliance can be placed in the case of Hindustan Construction Company Limited [1996 (9) TMI 156 - CEGAT, COURT NO. II, NEW DELHI] dealing with the issue that whether the crushing of stones into stones of smaller size amounts to manufacture, classifiable under sub-heading 2505 as in the present case, the Larger Bench by majority of order though held that the activities amount to manufacture but the demand for the extended period was set aside.
The demand is not sustainable on limitation also - the impugned orders are not sustainable - Appeal allowed.
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2024 (4) TMI 1126 - CESTAT CHENNAI
Classification of services - Erection, Commissioning or Installation Service or not - services of laying of optic fibre cables provided to M/s.BSNL - suppression of facts or not - Extended period of Limitation - HELD THAT:- The department has issued clarification on disputes by Board’s Circular No.123/5/2010 that have arisen with regard to works related to cables. In the table given, in para-3 at Sl.No.3, it is mentioned that the laying of electric cables is exempt from levy of service tax. Sl.No.2 states that ‘laying of cables under or alongside roads’ is exempted from levy of service tax. Sl.No.2 is not qualified with the word ‘electric cable’. The word ‘cable’ is used in general sense and will apply to telecommunications cables also. It is opined that the clarification issued by the Board would apply and that the said activity is exempted from levy of service tax.
The department themselves had a contrary view holding that the activity is not subject to levy of service tax. Further, the Tribunal in the case of CCE, LUCKNOW VERSUS M/S RAJ ELECTRIC WORKS [2017 (9) TMI 793 - CESTAT ALLAHABAD] had held that the activity of laying of opting fibre cables for M/s.BSNL is not subject to levy of service tax. The Tribunal in the said case had followed the Board’s circular and also other decisions which have categorically held that the activity is not subject to levy of service tax.
The demand of service tax cannot sustain and requires to be set aside. The issue on merits is answered in favour of the appellant.
Time Limitation - suppression of facts or not - HELD THAT:- There is no suppression of facts brought out by the Department. The appellant has accounted the entire consideration received by them in their books. The demand has been raised on the figures obtained from the records maintained by the appellant. Further the issue is interpretational in nature. In such circumstances, the demand raised invoking the extended period also cannot sustain. The show cause notice is time-barred. The appellant succeeds on limitation also.
The impugned order is set aside. The appeal is allowed.
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2024 (4) TMI 1125 - CESTAT CHENNAI
Levy of service tax - Municipality provided services / facilities while discharging sovereign functions or not - services are in the nature of fees, fine charges collected by the Municipality while discharging the functions enlisted in 12th Schedule of the Constitution or not - reverse charge mechanism - major part of the demand is under Renting of Immovable Property Services - Extended period of limitation - HELD THAT:- The Hon’ble High Court in the case of CUDDALORE MUNICIPALITY VERSUS THE JOINT COMMISSIONER OF GST & CENTRAL EXCISE, THE ASSISTANT COMMISSIONER OF CENTRAL EXCISE & SERVICE TAX AND VIRUDHACHALAM MUNICIPALITY VERSUS THE ASSISTANT COMMISSIONER, OFFICE OF THE ASSISTANT COMMISSIONER OF GST AND CENTRAL EXCISE, CUDDALORE [2021 (4) TMI 500 - MADRAS HIGH COURT] had analysed the issue as to whether demand of service tax can be raised in regard to services / facilities provided by Municipality / Corporation. It was held that Municipalities (local authority) were rendering such services as sovereign function and therefore the amounts received is outside the purview of levy of service tax. In the said judgment, the Hon’ble High Court considered the liability to pay service tax for the period prior to 01.07.2012 as well as after 01.07.2012 - It was held that the Government or local authority is exempted from payment of service tax on Renting of Immovable Property Services or for other services.
The above decision was rendered by the Hon’ble High Court on 22.03.2021. However, prior to this decision, the Hon’ble Jurisdictional High Court at Madurai Bench in the case of Madurai Corporation Vs. The Commissioner of Central Excise [2020 (9) TMI 1303 - MADRAS HIGH COURT] had considered the issue of taxability of renting of immovable property and vide judgment dated 09.09.2020 held that Municipality is liable to pay service tax - In the case of Madurai Corporation, the Ld. Single Bench Judge sustained the demand mainly on the view that it was observed by the Hon’ble High Court in the batch case that the Municipality can pass on the burden of service tax to the tenant (recipient of service tax).
It is represented here that the Department has filed appeal against the decision passed by the Ld. Single Judge in the case of Cuddalore Municipality and that assessee has filed appeal against the decision passed in the case of Madurai Corporation. These appeals are pending before the Hon’ble High Court. Since, the Hon’ble High Court in the case of St. Thomas Mount Cum Pallavaram Cantonment Board [2023 (4) TMI 1024 - MADRAS HIGH COURT] has remanded the matter for considering the issue afresh, it is opined, that in the interest of justice, these matters also require to be remanded to the Adjudicating Authority to consider afresh the issue as to whether Municipality is liable to pay service tax under Renting of Immovable Property Services and other Services.
Time limitation - HELD THAT:- The assessee being a local authority, which is a wing of the Government, it cannot be said that assessee has suppressed facts with intent to evade payment of service tax. So also, there is no positive act of suppression alleged in the Show Cause Notice against these Municipalities. As the matter is remanded, the Adjudicating Authority is directed to consider the issue on limitation also.
The Department has filed appeal aggrieved by dropping or reducing the demands. In case the demand of service tax is sustainable, the Adjudicating Authority is directed to quantify after looking into the actual amounts received in respect of each services.
The appeals are allowed by way of remand to the Adjudicating Authority.
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2024 (4) TMI 1124 - CESTAT AHMEDABAD
Classification of service - works contract service or erection, commissioning and installation services - scope of the supply to the recipients of services include the materials as well - suppression of facts or not - Extended period of Limitation - HELD THAT:- There are force in the arguments of Appellant that the scope of their services also included the supply of material. The same is supported by the facts as recorded by Ld. Commissioner in Para 8(d) of the Order in Original dated 30.10.2014 wherein it is clearly coming up that the Appellant were also required to supply the materials. Therefore, the appropriate classification for the services provided by the Appellants would be “works contract services” and not “erection, commissioning and installation services”.
Reliance placed on the decision of coordinate bench at Chennai in case of REAL VALUE PROMOTERS PVT. LTD., CEEBROS PROPERTY DEVELOPMENT, PRIME DEVELOPERS VERSUS COMMISSIONER OF GST & CENTRAL EXCISE, CHENNAI [2018 (9) TMI 1149 - CESTAT CHENNAI] wherein it is held that demand of service tax under the taxable category of erection, commissioning and installation only if the services are in the nature of services simpliciter.
However, as per the facts recorded by Ld. Commissioner in the present case it clear that the scope of services of the Appellants also include supply of materials and therefore, the demand of service tax under the taxable category of erection, commissioning and installation services is not sustainable in the present case. The decision of Real Value Promoters is followed in many other decisions as well.
The impugned order is set aside - appeal allowed.
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2024 (4) TMI 1095 - SC ORDER
Rejection of review petition - Exemption from Service tax - governmental authority - educational institutions - Indian Institute of Technology, Patna (IIT Patna) - National Institute of Technology, Rourkela (NIT Rourkela) - covered by Mega Service Tax Exemption Notification No. 25/2012, G.S.R 467(E) dated 20th June, 2012 or not - it was held by SC that in the present case, the word “or” between sub-clauses (i) and (ii) indicates the independent and disjunctive nature of sub-clause (i), meaning thereby that “or” used after sub-clause (i) cannot be interpreted as “and” so as to tie it with the condition enumerated in the long line of clause 2(s) which is applicable only to sub-clause (ii).
HELD THAT:- No case for review of the judgment dated 13.10.2023 is made out - The review petition is accordingly dismissed.
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2024 (4) TMI 1094 - CESTAT NEW DELHI
Extended period of limitation - suppression of facts or not - Recovery of service tax - wrongful claiming of value of reimbursement (pure agent) - HELD THAT:- The Order-in-Original is observed to be silent about these allegations/observations in the show cause notice though the extended period is held to be invocable. These allegations also have factual basis which need appreciation of the returns and other related documents. Hence it is not deemed appropriate to decide the plea of limitation without appreciation of the documentary evidence which has been produced by the appellant at this stage before the Tribunal. The said documents need to be appreciated by the original adjudicating authority itself. Both the parties otherwise have acknowledged consents for remanding back the matter.
It is deemed proper that the original adjudicating authority shall decide the show cause notice afresh after giving the appropriate findings with respect to the allegations of suppression and misrepresentation and thus about the invocation of extended period of limitation.
Appeal allowed by way of remand.
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2024 (4) TMI 1063 - CESTAT AHMEDABAD
Extended period of Limitation - Classification of services - Business Auxiliary Services or not - payment of commission to foreign agent during the year 2008-09 and 2009-10 towards trading of petroleum products and booked expenditure in their books of account - revenue neutrality - HELD THAT:- The extended period of limitation can be invoked only when there is suppression of facts, willful mis-statement, and collusion with intent to evade the payment of tax. The extended period of limitation can be invoked only on these grounds which are specifically provided under the statute. If the department seeks to invoke the extended period of limitation on grounds other than those mentioned in statute then such an invocation of extended period of limitation is bad in law.
In this case there was no deliberate intention on the part of the appellant in either not disclosing correct information or to evade the payment of any tax. There is no positive Act was found on the part of the appellant to evade the payment of any service tax nor has any proof towards this been adduced by the revenue. A mere omission will not cause to suppression of fact and as the appellant was of bona fide belief that no service tax was liable to be paid in relation to payment made to foreign agent categorized under ‘Business Auxiliary Service’. Therefore, the longer period of limitation cannot be invoked in the fact of the present case - there are no act of the appellant which prescribed under Proviso to Section 73(1) of the Finance Act, such as suppression of fact, willful mis-statement, collusion with intent to evade payment of tax. Therefore, the demand being under extended period cannot be sustained.
Revenue Neutrality - HELD THAT:- The entire situation is revenue neutral and there is no loss of the revenue. For this reason also there is no mala fide intention on the part of the appellant. Hence, the extended period is not invokable.
The impugned order is set aside - appeal allowed.
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2024 (4) TMI 1041 - TELANGANA HIGH COURT
Refund of Service Tax - tax paid as a mistake of law - applicability of time limitation as per Section 11B of the Act, 1944 - HELD THAT:- This question came up for consideration before the Delhi High Court in HIND AGRO INDUSTRIES LIMITED VERSUS COMMISSIONER OF CUSTOMS [2007 (8) TMI 215 - DELHI HIGH COURT]. After considering the judgment of the Hon’ble Supreme Court in case of Mafatlal Industries Ltd. [2002 (11) TMI 707 - CEGAT, MUMBAI], the Delhi High Court held that the judgment of Mafatlal Industries Ltd. nowhere talks of a situation where the refund of a tax paid under the relevant Act albeit erroneously was required to be made under the Excise Act or the Customs Act and under no other enactment. It was clearly held that judgment of Mafatlal Industries Ltd. (supra 1) is of no assistance in a case where tax is erroneously paid as a mistake of law.
The Tribunal has also taken note of the judgment of Karnataka High Court in COMMISSIONER OF CENTRAL EXCISE (APPEALS), BANGALORE VERSUS KVR CONSTRUCTION [2012 (7) TMI 22 - KARNATAKA HIGH COURT]. The Karnataka High Court also considered the judgment of Delhi High Court in case of Hind Agro Industries Limited [2007 (8) TMI 215 - DELHI HIGH COURT] and the judgment of Mafatlal Industries Ltd. and in no certain terms made it clear that where the tax is admittedly paid as a mistake of law, the limitation will not come in the way for refund.
Thus, no substantial question of law subsists and needs to be answered, because curtains are already drawn on this issue by various High Courts. Thus, admission is declined.
The Central Excise Appeal is dismissed.
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2024 (4) TMI 1040 - CESTAT CHENNAI
Payment through CENVAT credit not accepted - supporting documents furnished were also not referred - HELD THAT:- There are no doubts as to the availability of CENVAT credit in the books of the appellant. But however, the lower authority has brushed aside the request of the appellant which is borne on record, but it was incumbent upon the original authority discharging the role of an adjudicating authority to verify/cross verify and then give proper findings through speaking order as to whether the claims of the appellant were acceptable or not. It is precisely the case of the appellant that they had discharged service tax liability to a larger extent through credit balance, but however, the original authority has ignored the claims of the appellant, which is not in accordance with law. Further, it is not even the case of the Revenue that the claims of the appellant were wrong insofar as the availability and the utilization thereof, CENVAT credit towards the payment of their service tax liability, however as contended by the learned Advocate, there may be a slight delay, for which statutory provisions are available to safeguard the interest of the revenue.
If the stand of the appellant is to be accepted upon verification, then, the demand once again would amount to double taxation, which is not the spirit of the taxing statute. In that view of the matter, it is deemed most appropriate to set aside the impugned order and remit matter back to the file of the original authority for de-novo adjudication, who verify the claims of the appellant and thereafter, pass a speaking order in accordance with law.
Appeal is allowed by way of remand.
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