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Service Tax - Case Laws
Showing 121 to 140 of 30277 Records
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2024 (10) TMI 1343
Non-payment of differential tax - short reporting of taxable services - whether in the facts of the case, the credit claimed to have been adjusted against the service tax liability by the appellant can be allowed or otherwise? - HELD THAT:- In the facts of the case, it is obvious that they are not disputing the liability as such and infact they have paid certain amount through challan way back in 2016 itself i.e. much before the detection of non-payment by the Audit Team. Therefore, there was no intention as such not to pay the service tax liability on the said unreflected amount of provision of services. Apparently, they were under the impression that the Cenvat Credit accrued to them would automatically get adjusted against the total liability and they have to discharge only on the net liability by way of challan payments. Admittedly, they made such adjustment during relevant period without reflecting all these transactions in the ST-3.
Since, the factual matrix is not very clear and the appellant will be required to demonstrate the actual availability of credit and its adjustment in their books of accounts, this requires to be remanded back to the Original Jurisdictional Authority, who shall go through the books of accounts, IT Returns and any other relevant documents which the appellants may like to produce in support of their legitimate Cenvat Credit and its adjustment. However, it is made clear that non-mentioning of the said credit in the ST-3 would not debar them from off setting or adjusting the said credit towards total liability - Adjudicating Authority should also see whether this credit has been otherwise not been used in discharge of liability for any other services during the relevant period or got transited to GST Regime with effect from approved date. Subject to such verification available credit would be admissible for adjustment towards outstanding liability.
The order of the Commissioner (Appeals) is set aside and the matter is remanded back to the Original Jurisdictional Authority for fresh adjudication - Appeal allowed by way of remand.
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2024 (10) TMI 1342
Levy of service tax - Director’s remuneration in the form of commission as per percentage of total profit of the company - reverse charge mechanism - HELD THAT:- There is no dispute that director was paid the commission amount as a part of director’s remuneration and the amounts paid as salary and on such amount the TDS was also deducted under the salary head. Therefore, any amount paid to the director in the form of director’s remuneration which is commission of company’s profit, the same is not chargeable to service tax under reverse charge basis as held in the case of ALCHEMIE ORGANICS VERSUS C.C.E & S.T. -VALSAD [2024 (6) TMI 1413 - CESTAT AHMEDABAD] where it was held that 'it is clarified that remunerations paid to Managing Directors/Directors of companies whether whole-time or independent when being compensated for their performance as Managing Directors/Directors would not be liable to service tax.'
Thus, it is settled law that any commission from the profit of the company paid to the director as director remuneration is not liable to the service tax under reverse charge basis.
The impugned order is not sustainable, hence, the same is set aside, appeals are allowed.
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2024 (10) TMI 1262
Interpretation of Sabka Vikas (Legacy Dispute Resolution) Scheme, 2019 regarding adjustment of CENVAT credit and cash payments for service tax - short payment of service tax - zero pre-deposit - HELD THAT:- Considering pursuant to the SCN petitioner had applied under the scheme and in view of aforesaid facts, we direct that the personal hearing will be for purpose of the Department/Designated Committee to conclude on petitioner’s assertion that 50% or more of the demand was paid and it is entitled to relief against the balance, under the scheme. The Department/Designated Committee will do well to pass a reasoned order such that points urged by petitioner in the writ petition and as may be urged before it regarding the scheme applying to it, are dealt with without leaving any ambiguity.
In event the Department/Designated Committee concludes that petitioner is not entitled to relief under the scheme, it will then issue fresh notice for personal hearing on the demand. This direction is made in view of clause (c) in aforesaid circular dated 27th August, 2019 and absence of anything on record or submission made that exercise of reconciliation was undertaken in respect of the particulars of the cash payments.
The writ petition is disposed of.
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2024 (10) TMI 1261
Time limitation - suppression of facts or not - Failure to pay appropriate Service Tax, in spite of collecting service charges / Service Tax from the clients - failure to file S.T.-3 Returns properly - HELD THAT:- From the documents submitted by the appellant, it is observed that the Service Tax liabilities for each financial year has been included in schedule 11 under the head of ‘current liabilities’ of the respective Balance sheets during the years 2009-10 and 2010-11 and for the rest of the impugned period i.e., for 2011-12 to 2013-14, the liabilities were reflected in note 7 under the head statutory liabilities. Further, the amount withheld as "retention money" has been reflected in note ‘g’ under the head ‘Security deposits & EMD’ of the Balance sheets for the respective periods. The unpaid bill amounts were reflected in the sub-head ‘Sundry debtors/Trade receivables’ of the head "current assets" of the respective Balance sheets of the impugned period. Thus, the appellant has not suppressed any information from the department.
It is observed that the entire Show Cause Notice has been issued on the basis of the documents submitted by the Appellant. The gross value of taxable services provided during the material period viz. 2009-10 to 2013-14 has been taken from the Bill statement furnished by the Appellant, which tallies with the figures reflected under the account head ‘Income from Operation’ in their balance sheet - the calculation of Service Tax liability has been done the basis of the Profit & Loss Account and balance sheet figures reflected in their account. Thus, the Appellant has not suppressed any information from the Department. When the demand of Service Tax has been raised from the details available in the Books of Account of the Appellant, the extended period cannot be invoked to demand Service Tax.
There is no suppression with intent to evade payment of tax established in this case. Accordingly, the demand of Service Tax confirmed by invoking the extended period of limitation is not sustainable and hence, the same is set aside.
The matter remanded to the adjudicating authority for the purpose of calculation of the demand, if any, for the normal period of limitation i.e., 18 months, from October 2012 to March 2014 - appeal disposed off by way of remand.
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2024 (10) TMI 1260
Levy of service tax - Whether the activity rendered by the appellant amounts to rendering Online Information and Data Based Access or Retrivial Services (OIDAR) services? - HELD THAT:- As per circular no. 11/1/2001-TRO-dated 09.07.2001, annexure IV thereof, it has been clarified that the online data base access/retrival is firstly available through Internet Service Providers (ISP). Secondly it includes data base services, provision of information on websites, provision of online data retrieval services from data bases and other information to all or to limited number of users and provision of online information by content provider. The services as quoted above do not require any of these two elements.
The activity rendered by appellant is not merely of accessing or retrieving online data. It is rather a service of developing softwares/websites or consultancy on internet which require too much of human intervention - the appellant’s activity is wrongly hold as OIDAR.
The confirmation of demand is held to be based on wrong presumption (as elaborated above) is denied to be called as OIDAR. Rule 6(A) of Service Tax Rules is also held to have been wrongly invoked - the appeal is hereby allowed.
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2024 (10) TMI 1259
Valuation - Recovery of Short paid service tax with interest and penalty - determination of the taxable value for payment of service tax on reverse charge basis by the service recipient in respect of GTA Services - what shall be the value of the services received? - HELD THAT:- The value of taxable service for the purpose of determination service tax payable, is the consideration received by the service recipient towards the provision of service. The word consideration has not been defined with reference to the invoice value but is defined in a inclusive manner by referring to the money value of the gross amount in any form paid by the service recipient to service provider for provision of service.
Appellant takes the value of taxable service as equivalent to the actual amount paid to the service recipient after adjusting for the rewards and penalties, a fact not in dispute. There are nothing in section 67 as per which the manner of determination of the taxable value can be questioned. As the value of taxable service has been determined on the basis of Section 67 of the Finance Act, 1994 there are no merits in enhancement of the value of the taxable service in manner as suggested by the impugned order.
It is the submission of the appellant that where so ever any additional incentive was paid to the service provider the same was added while determining the value of taxable service. However in case of penalties deducted from the invoice value the taxable value is determined on the basis of the gross amount paid towards the provision of service. We do not find that Rule 6 (1) (x) provides for enhancement of the value of the taxable service in such cases. Said Rule will have no applicability to the present case. In any case Rule 6 (1) (x) cannot be read to be over-riding the provisions of Section 67 of the Finance Act, 1994.
In case of Intercontinental Consultants and Technocrats Pvt. Ltd. [2018 (3) TMI 357 - SUPREME COURT] Hon’ble Supreme Court observed 'High Court was right in interpreting Sections 66 and 67 to say that in the valuation of taxable service, the value of taxable service shall be the gross amount charged by the service provider ‘for such service’ and the valuation of tax service cannot be anything more or less than the consideration paid as quid pro qua for rendering such a service.'
There are no merits in the impugned order - Appeal allowed.
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2024 (10) TMI 1258
Levy of service tax - weighment activity carried out within the Navlakhi Port - classifiable under the taxable category of Business Support Service as defined under Section 65(104c) of Finance Act, 1994 read with Section 65(105)(zzzg) of the Finance Act, 1994 or not - HELD THAT:- It is found that the weighbridge activity is an independent activity of the respondent appellant. The weighbridge, therefore, under any circumstances, this activity cannot be classified as Business Support Service as the Respondent is not doing any activity to support in anyone’s business.
Therefore, firstly, the category of the demand itself is incorrect and on that ground itself the demand raised in the Show Cause Notice does not survive. Consequently, the learned Commissioner (Appeals) has dropped the demand on the ground that the appellant have undertaken the statutory obligation by the activity of weighbridge at the Navlakhi Port.
Thus, for the operation of the port, there are some statutory obligation to be performed for smooth operation of the port and such statutory obligations are assigned to different person as in the present case is weighbridge statutory obligation has been assigned to the respondent. Therefore, being a statutory obligation, the same cannot be taxed as held in various judgments cited by the learned counsel for the respondent.
Reliance placed in the case of Food Corporation of India [2023 (8) TMI 538 - CESTAT CHANDIGARH] where it was held that 'The Business Auxiliary Service means any service in relation to promotion or marketing or sale of goods produced or provided by or belonging to clients. As respondents are not concerned with the sale or marketing of the goods, therefore, cannot be said to be provider of incidental or auxiliary service to any activity such as promotion or marketing or sale of goods produced. In these circumstances, we find no infirmity in the impugned orders. The appeals are dismissed.'
From the above judgment not only on the point of statutory obligation but also on the specific activity of weighment, it was held that the said activity is not liable to service tax.
Thus, no interference is required in the impugned order - the impugned order is upheld - Revenue’s appeal is dismissed.
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2024 (10) TMI 1257
Refund in cash - non-acceptance of the documents submitted, for the claim as not sufficient - reverse charge mechanism - HELD THAT:- Section 142(3) is only a provision which provides for entertaining and allowing refund of credit and in case any refund payable, then the same can be refunded in cash. However, whether the refund as such is otherwise eligible and admissible under the existing law would be the determining factor.
On going through the judgments cited specially the case of M/s NACL Industries Ltd., [2024 (9) TMI 507 - CESTAT HYDERABAD], which has dealt with the same issue and held that refund was not permissible in certain situation where it was otherwise not eligible under existing law.
It is found that in the Larger Bench decision of M/s Bosch Electrical Drive India Pvt Ltd. [2023 (12) TMI 1145 - CESTAT CHENNAI-LB], the issue referred to was not regarding the admissibility of refund under Section 142(3) in the given facts, rather it was with regard to maintainability of such appeal before CESTAT and which was decided by the Larger Bench by holding that such appeals are maintainable. This is not the issue in the present appeal as it has already admitted and is not being contested by the Revenue and therefore it does not help the grounds taken by the appellant.
The order of Single Member Bench in M/s Jagannath Polymers Pvt Ltd. [2021 (12) TMI 736 - CESTAT NEW DELHI], has allowed appeal in a given factual matrix without addressing the various order of Hon’ble High Courts and Tribunals on the interpretation of Section 142(3) of CGST Act 2017.
In so far as the issue of credit being substantive right and therefore refund is required to be allowed in view of provisions under Section 174 of CGST, the issue is also no longer res integra and various Court’s and Tribunals have held the credit is not a substantive right rather it is in the nature if concession.
There are no infirmity in the order passed by the Commissioner (Appeals) - appeal dismissed.
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2024 (10) TMI 1180
Refund of service tax - export of service in terms of Rule 6A of Service Tax Rules, 2012 r/w Rule 3 of Place of Provision of Service Rules, 2012 - services claimed to be advertising agency services, provided by the appellant from India through electronic media to their group companies/clients of its overseas group companies located outside India - principles of unjust enrichment - it is submitted that for the earlier years i.e. April, 2011 upto June, 2012 the department kept on sanctioning refunds to the appellant on the same set of documents by considering the service as ‘Advertising Agency service’ without raising any doubt - HELD THAT:- After looking at the earlier orders of granting refund, it is deemed proper to firstly take up the issue about the inconsistency in the orders of Adjudicating Authority that too for the very same assessee. In our view, the issues have been dealt with by the lower authorities in a most casual way.
Time and again it has been repeated through various judicial precedents that the revenue cannot be permitted to adopt an inconsistent stand in a subsequent assessment where the facts are identical unless there is change in law. None of the authorities below have considered it proper to even address the submission on behalf of the appellant regarding the earlier orders of the Adjudicating Authority granting refund for the same service. That becomes relevant when no appeals have been preferred by the revenue against the said order.
The revenue cannot be permitted to adopt an inconsistent stand in subsequent proceedings when the facts are identical unless they show that the law has changed but nothing of that sort has been attempted.
The authorities below have failed to base their decision of rejecting the refund claim on any change in law or circumstance, rather they ignored the said submission on behalf of the appellant - also, w.e.f. 1.7.2012 substantial changes by way of amendment have been affected in the Finance Act as well as in the Service Tax Rules and also various new Rules such as Place of Provision of Service Rules, 2012 etc. were brought into effect.
It s deemed proper to remand the matter back to the Adjudicating Authority for denovo adjudication after taking into consideration their earlier orders of granting refunds to the appellant and also after taking into consideration all the submissions of the appellant and the laws applicable at the relevant time. The said authority must provide a proper opportunity of hearing to the appellant.
Appeals filed by the appellant are allowed by way of remand to the Adjudicating Authority.
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2024 (10) TMI 1179
Recovery of credit of tax paid availed on receipt of services under CENVAT Credit Rules, 2004, on the ground that either registration number was missing in the tax paying documents or that the number itself was incorrect - rule 9 of CENVAT Credit Rules, 2004 - HELD THAT:- As the inadequacy in the documents is deemed to a technical error and that there is no allegation record that the services had not been rendered or that tax had not been discharged, there is no reason to uphold the impugned order.
The appeal is allowed.
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2024 (10) TMI 1134
Challenge to Nil Arbitral Award, on extraneous consideration, levying the service tax on the petitioners on the NCA - interpretation of the terms of the Agreements - determination of contractual obligations viz indirect tax (service tax) liability and for the payment of damages constituted as costs incurred by the petitioner in defending the Assessment Order.
The core argument of the Petitioners is that they had sought a Declaratory finding as to on whom the liability of any tax that may get imposed in future would lie, but this question has been left unanswered.
HELD THAT:- The first aspect which is agitated is that the Show Cause Notice and Assessment Order for payment of Service Tax in the sum of Rs. 9,68,50,000/- had been served upon the petitioners. The parties had specifically agreed in their NCA that there is no service tax leviable on the said Agreement. In case the Notice got issued in the name of the petitioners, it is for the petitioners to have defended the same in which they were successful - It was a Notice/Order issued for payment of service tax on the premise that NCA attracted the service tax. The Notice may have been found to be not sustainable by CESTAT, but in no way can the respondent be held responsible for the costs incurred by the petitioners in defending the said Notice/Order before the CESTAT. The overhead costs, expenses and interest on the overdraft to garner money for pre Appeal deposit may have been borne by the petitioners as the Notice was in their name, and under no law can the incurred expenses be fastened on the respondent.
Furthermore, the specific challenge was to the Notice/Order vide which the Service Tax was sought to be imposed upon the petitioners, which was not leviable in the first instance. In view of erroneous Notice in the name of the Petitioners, it was only they who had to defend themselves from imposition of the Service Tax. The costs incurred for challenging. The Notices was specific to the petitioners and they cannot transpose their liability on the respondents - It cannot be overlooked that in the Agreements, in was specifically mentioned that the service Tax is not leviable on NCA fees. For the erroneous acts of the third party, the respondent can definitely not be held liable for the costs incurred in defending the Notices before CESTAT.
There is no denying that the parties could have contracted in regard to which party would be liable for any taxes that may get imposed in regard to the Agreements between the parties, but Petitioners have not been able to show any such clause providing that any liability, whether rightly or wrongly sought to be imposed, shall be the responsibility or indemnified by the Respondent - The learned Arbitral Tribunal was thus, right in giving the ‘Nil’ Award.
The petitioners have also claimed that the costs of the arbitration proceedings which it had initiated for determination of the liability of which to pay the impeding tax demand - In fact, the respondent had even filed an Application under Section 16 of the Act to assert that the arbitration had been invoked prematurely, though the same got dismissed by the learned Arbitrator. The arbitration proceedings were not at the behest or at the instance of the respondent and, therefore, no costs can be recovered from the respondent.
The ground of ‘patent illegality’ is applied when there is a contravention of the substantive law of India, the Arbitration Act or the rules applicable to the substance of the dispute - it is evident that the grounds agitated by the petitioners, do not fall in either of the categories of patent illegality or fundamental breach of Indian Law.
The scope of interference under Section 34 of the Act being limited, there is no merit in the present Petition under Section 34 of the Act, 1996 which is hereby dismissed.
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2024 (10) TMI 1133
Rejection of declaration in Form SVLDRS-1 filed by the petitioner under the Sabka Vishwas (Legacy Dispute Resolution) Scheme, 2019 (SVLDRS) - rejection on the ground that the petitioner was not eligible to avail the Scheme as there is no quantification of Rs. 20,72,31,044/- stated by the petitioner in the Form for proposed such levy in the show cause notice - HELD THAT:- It is not in dispute that the show cause notice was pending adjudication when the scheme was introduced as on 30.06.2019, which was cut-off date as per the SVLDRS. The show cause notice was for the levy of penalty amounting to Rs. 20,72,31,044/-, as stated in Para-12 of the show cause notice dated 25.02.2019.
The scheme is applicable to any show cause notice for penalty/late fee, irrespective of whether it is under adjudication or appeal. The case of the petitioner therefore would squarely fall in the eligible cases and merely because the petitioner has shown the amount of proposed penalty mentioned in the show cause notice would not make the declaration made by the petitioner as eligible under the Scheme.
The impugned order dated 18.03.2020 passed by respondent No. 2 is hereby quashed and set aside. The matter is remanded back to the respondent authorities to adjudicate the Form SVLDRS-1 in accordance with law as it is not in dispute that the show cause notice for penalty was pending adjudication as on 30.06.2019.
Petition allowed by way of remand.
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2024 (10) TMI 1132
Demand of short paid service tax - managements, maintainenance or repair service shown as works contract service - eligibility for CENVAT Credit - service tax on differential value as per reconciliation of income with the ST-3 return.
Service Tax amounting Rs. 91,27,000/- demanded as short paid by the appellants towards the managements, maintainenance or repair service shown as works contract service - HELD THAT:- The appellant have paid the VAT on the value of goods used in providing the management, maintenance or repair service. Therefore, if this value of the goods is excluded then on the remaining value the service tax was said to have been paid. It is submission of the appellant that the said value is much below the value at which the appellant have discharged the service tax considering it as works contract service. Therefore, no service tax demand will prima facie exist. However on all the above aspects the final conclusion is subject to verification.
Benefit of abatement of 70% of the total amount charged towards works contract service was denied as service tax demanded as short paid on the ground that the appellant have availed the Cenvat credit which is not permissible to the service as works contract service - HELD THAT:- The Lower Authority has denied the such benefit only on the ground that the appellant have availed the Cenvat credit. The appellant have claimed that they have reversed the Cenvat credit and if at all there is any short fall, the appellant shall reverse the balance amount, in such situation the appellant is prima facie eligible for benefit of Works Contract Service. Hence, on this count matter needs reconsideration.
Service Tax amount of Rs. 16,32,909/- was demanded on the differential value as per reconciliation of income with the ST-3 return - HELD THAT:- It is found that as per the reconciliation given by the appellant, the appellant claimed to have discharged the Service Tax correctly and accordingly no differential demand of service tax arise. However, the correctness of the calculation needs to be verified by the department.
The entire matter needs to be reconsidered - the impugned order is set aside - appeal allowed by way of remand.
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2024 (10) TMI 1131
Levy of service tax - security deposit collected by the respondent - validity of SCN issued in the form of a statement is valid under the negative list regime effective from 01.07.2012 - HELD THAT:- A security deposit for any length of time would not automatically became a taxable service in the hands of the respondent and that there is no provision in service tax law for taxing on a security deposit amount.
Admittedly, the security deposit collected by the respondent is refundable at the time of termination of Gas supply agreement. Therefore, the said security deposit cannot form a part of service provided by the respondent. Therefore, on the said amount, Service Tax is not payable - As per the agreement, after all dues are cleared and the meter and allied equipment have been removed in proper and undamaged working condition, the security deposit shall be refunded to the buyer. Clearly, the said security deposit amount is not a part of service which is provided by the respondent, hence not taxable.
Whether the show cause notice issued in the form of a statement is valid under the negative list regime effective from 01.07.2012? - HELD THAT:- Since the matter is decided on merit i.e. whether security deposit is liable to service tax or otherwise, this issue is not being addressed and same is kept open.
The order of Ld. Commissioner is upheld - appeal of department dismissed.
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2024 (10) TMI 1130
Levy of service tax - security services availed from CISF under reverse charge mechanism basis - valuation of free housing facility provided by the appellant to the CISF personnel - Rule 2 (1) (d) (i) (E) of the Service Tax Rules of 1994 read with Notification No. 30/2012 -ST dated 20.06.2012 - HELD THAT:- The issue of valuation of free housing facility provided by the appellant to the CISF personnel is no longer res integra as this Tribunal in the appellant’s own case NTPC LTD VERSUS C.C.E. & S.T. -SURAT-I [2024 (5) TMI 816 - CESTAT AHMEDABAD] decided the issue in favour of the appellant - thus, it is seen that the demand raised by the Department is unsustainable and liable to be set aside.
It is further observed that the appellant are not liable to pay service tax on the value of accommodation, vehicles for transportation, telephone facilities, etc. and it is found that as regard the issue penalty, the demand on merits is not sustainable, there is no question of imposition of penalty under Section 76. It is also observed that when the demand is not maintainable, there is no question of interest on the differential demand of service tax. Hence, the interest demand on the differential service tax liability is not maintainable.
The impugned order is set aside - Appeal allowed.
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2024 (10) TMI 1129
Liability to pay service tax on supply of water to Government of Odisha - re-availment of Cenvat Credit subsequent to change of option under Rule 6(3) of Cenvat Credit Rules, 2004 - Cenvat Credit availed on invoices after one year of issuance in the year of return.
Whether the appellant is liable to pay Service Tax on supply of water by Government of Odisha in terms of Section 66(B)A of the Finance Act, 1994? - HELD THAT:- The said issue has been settled by this Tribunal in the case of M/S. PARADEEP PHOSPHATES LIMITED VERSUS COMMISSIONER OF CGST & EXCISE, BHUBANESWAR-I, BHUBANESWAR [2024 (6) TMI 1410 - CESTAT KOLKATA] wherein this Tribunal observed 'The appellant is, therefore, justified in asserting that the Agreement executed between the appellant and the government is for supply of water for which charges are paid by the appellant on the basis of volume of water drawn and it is not a case of assignment of right to use natural resources of the government.' - As issue has already been settled by the decision of this Trbunal for water supply by Government of Odisha, the appellant is not liable to Service Tax. Therefore, issue is no more res-integra and appellant is not liable to pay Service Tax.
Re-availment of Cenvat Credit subsequent to change of option under Rule 6(3) of the Cenvat Credit Rules, 2004 - HELD THAT:- The appellant has intimated to the Department vide letters dated 01.12.2016 and 12.01.2017 and which were in well knowledge of the Department. Therefore, no suppression can be alleged against the appellant. Therefore, no demand can be raised against the appellant for re-availment of credit subsequent to change of option under Rule 6(3) of the Cenvat Credit Rules, 2004. Therefore, the demand of Rs. 183,09,57,095/- is set aside.
Cenvat Credit availed on invoice after one year of the issuance - HELD THAT:- The same has been shown by the appellant in the ER-1 return which was filed on 12.01.2017 and which has well within the knowledge of the Department in 2017 itself, therefore, no suppression of facts can be alleged against the appellant. Therefore, Cenvat credit cannot be denied to the appellant only on the reason that they have shown in the ER-1 return beyond one year period.
Interest and penalty - HELD THAT:- As no demand is sustainable against the appellant, consequently no interest is payable by the appellant and no penalty is imposable.
The impugned order is set aside - appeal allowed.
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2024 (10) TMI 1070
Refund of service tax paid under Reverse Charge Mechanism (RCM) - rejection on the allegation that there was no provision which allowed refund of service tax paid under RCM - substantive right of the appellant to avail CENVAT Credit - Interpretation of Section 11B of the Central Excise Act, 1944, and Section 142(3) of the CGST Act, 2017 - HELD THAT:- There are no relevance of the decisions of tribunal relied by appellant in the matter as the issue has been authoritatively considered by Hon'ble High Court of Jharkhand in the case of Rungta Mines [2022 (2) TMI 934 - JHARKHAND HIGH COURT] where it was held 'the petitioner on the one hand did not claim CENVAT Credit as per the procedure established by law under the existing law and on the other hand violated the provisions of law while filing his service tax returns and claimed the amount as input service and thereafter filed his petition for refund on 28.06.2018 referring to Section 142(3) of the CGST Act. The petitioner never had a right to claim refund under the existing law and had failed to exercise their right to claim CENVAT Credit as per law and wrongly claimed the impugned amount as credit in Service Tax Return (S.T. 3 return).'
Appellant placed reliance on the decision of Hon'ble Bombay High Court in case of Combitic Global Caplet Pvt Ltd [2024 (6) TMI 498 - BOMBAY HIGH COURT] and Simbhaoli Sugar Ltd.[2024 (8) TMI 7 - CESTAT ALLAHABAD] - these decisions have not been rendered in respect of the amounts which became due to the concerned parties prior 30.06.2017. Thus these decisions are clearly distinguishable and do not support the case of the appellant.
There are no merits in the appeal - appeal dismissed.
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2024 (10) TMI 1069
Interpretation of statute - Section 35A of the Central Excise Act and Section 85 of the Finance Act, 1994 - power of Commissioner (Appeals) to remand the matter back to the original adjudicating authority - HELD THAT:- The powers of Commissioner (Appeal) in the matters relating to the Appeal, filed before him under the Central Excise Act, 1944 and under Finance Act, 1994 are identical. Subsection (5) of Section 85, make these powers co-terminus with the powers available under the Central Excise Act, 1994.
In view of the Section 35A of CEA, the learned Commissioner (Appeals) is mandated to make such order as he deems just proper, confirming, modifying or annulling the decision or order appealed against. In view of the above said provisions it is deemed to remand the matter to be decided by the learned Commissioner (Appeals) instead of remanding it back to the Original Authority. The said observation is made in interest of justice for the reason that by remanding the matter back to original authority the appellant is forced into another round of litigation at the level of adjudicating authority, which could be avoided and which was the objective of amendments made in Section 35A of the Central Excise Act, 1944 by the Finance Act, 2001.
Matter remanded back to the learned Commissioner (Appeals) for a decision within three months from the date of this order - appeal allowed by way of remand.
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2024 (10) TMI 1068
Classification of service - Mailing List Compilation and Mailing Service or not - sharing of the CAT score by the appellant-IIM, Kozhikode with the non-IIM institutions for admission of candidates in their institutions - HELD THAT:- 'Mailing List Compilation is the process of compiling business and consumer mailing lists into a database. The appellant does not compile any information for the non-IIM institutions, the appellant only shares the CAT score obtained by the candidate in the examination conducted by them and only shares this information available with them and they do not compile any information from any other source. Further, it is found that they do not provide any services of sending documents, materials, information or any other goods by addressing, stuffing, sealing, metering or mailing the envelope or packet for or on behalf of the non-IIM institutions, therefore they are not a mailing company des-patching the goods to the customers.
The activity of sharing of CAT score by the appellant with the non-IIM institution does not fall under the service category of ‘Mailing List Compilation and Mailing Service’, hence, the demand of service tax along with interest and imposition of penalties on the appellant are not sustainable and deserves to be set aside.
Appeal allowed.
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2024 (10) TMI 1067
Refund of service tax - whether the appellant is liable to pay service tax on the service of clinical trial on drugs for the foreign service recipient? - whether the service is export service or otherwise and liable to service tax? - HELD THAT:- The issue is no longer res-integra as the same issue in the appellant’s own case vide Final Order No. 11772/2024 dated 14.08.2024 [2024 (8) TMI 1333 - CESTAT AHMEDABAD] has been decided considering various precedent judgments, in their favour that the service of clinical trial provided on the drugs supplied by the foreign service recipient is export of service and is not taxable, therefore the activity in the present case is not liable to service tax. Therefore, the demand in the present assessee’s appeals is not sustainable.
The Revenue has sought to reject the refund claims on the same ground that service is not export of service. Since this Tribunal has already taken a view that the very same service is export of service therefore, Revenue’s appeals are not sustainable hence the same are liable to be dismissed.
Assessee’s appeals are allowed.
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9911796707
