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Service Tax - Case Laws
Showing 241 to 260 of 30277 Records
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2024 (9) TMI 1493
Levy of service tax - operation and maintenance & repair of the Ropeway - Activity of maintenance of the battery-operated vehicle and existing road train and prevailing track in the Science City Authority - Operation and maintenance of external coal handling system - Service tax under Reverse Charge Mechanism on Rent a cab, Security Service, Works Contract Service, Manpower Recruitment Service & Legal Services - Demand of service Tax on the operation and maintenance & repair of the Bridge at Jaleswar - Denial of CENVAT Credit utilized for discharging the Service Tax Liability - non-payment of service tax on advances - Reversal of CENVAT on account of non-payment to supplier/contractor.
Operation and maintenance & repair of the Ropeway - HELD THAT:- It is observed that the appellant was awarded the right to operate and maintain the ropeway for which a license fee was paid to the respective state governments. A perusal of the agreements executed by the appellant with the respective state governments clearly reveal that the appellant operated the Aerial Ropeway by charging value of tickets from the riders of the ropeway. They paid yearly license fee at specific rate to the respective governments of Sikkim and Jharkhand. Rest of the money earned is appropriated by them for operation and maintenance of the said Ropeway - the appellant has rendered the service of transportation of passengers by Rope Way, which has been specifically exempted from payment of service tax. The activities undertaken by the Appellant by way of transportation of passengers by ropeway was not taxable under any of the category under the positive list and was exempted under Serial No. 23(c) of N/N. 25/2012 ST dated 20.06.2012, under the negative list regime - the demands of service tax confirmed on this count are not sustainable.
Activity of maintenance of the battery-operated vehicle and existing road train and prevailing track in the Science City Authority - HELD THAT:- The appellant was entrusted with the task to collect money from the visitors by selling tickets and giving a part of it to Science city authority as royalty. Thus, the money has been collected only for allowing the visitors in to the science city, which is not a taxable service. The said activity was not taxable under any of the category under the positive list and was exempted under Serial No. 23(c) of Notification No.25/2012-ST dated 20.06.2012, under the negative list regime. Accordingly, the demands of service tax confirmed on this count in the both the orders is not sustainable.
Operation and maintenance of external coal handling system - HELD THAT:- The activities of the appellant relating to transportation of coal in a specific manner and at a specific point cannot be considered as infrastructural support and maintenance services. In this regard, reliance placed on the Board Circular No. 232/2/2006 CX 4 dated 12.11.2007, wherein it has been clarified that if transportation of coal is undertaken by mechanical systems, such as ropeway system, no service tax would be chargeable. It is further observed that the appellant started paying service tax w.e.f. 01-07-2012 on the entire activity undertaken by them and have paid Rs.42,95,835/-(through Cash of Rs.36,36,634 and CENVAT Credit of Rs. 6,59,201] out of the total demand of Rs.54,12,061/-. However, the adjudicating authority failed to adjust this amount against the demand confirmed. Since there is no service tax payable for the period prior to 01.07.2012 and appropriate service tax has already been paid by the appellant for the period after 01.07.2012, there is no further liability on the appellant. However, the issue is remanded back to the adjudicating authority for verification and confirmation of payment of Rs.42,95,835/- as claimed by the appellant.
Service tax under Reverse Charge Mechanism on Rent a cab, Security Service, Works Contract Service, Manpower Recruitment Service & Legal Services - HELD THAT:- The appellant claimed that they have already paid the total amount of Service Tax of Rs. 1,45,860/- along with interest of Rs. 44,853/-. It is observed that there is no suppression of facts in this case and the intention to evade payment of tax has not been established. Since the entire demand confirmed in the impugned order is paid along with interest, no penalty imposable on the appellant. Accordingly, the penalty equal to the tax confirmed on this count is set aside.
Demand of service Tax on the operation and maintenance & repair of the Bridge at Jaleswar - HELD THAT:- It is observed that the said service related to maintenance of bridges and thus are exempted from payment of service tax. Accordingly, the demand confirmed on this count is set aside.
Denial of CENVAT Credit utilized for discharging the Service Tax Liability - non-payment of service tax on advances - Reversal of CENVAT on account of non-payment to supplier/contractor - HELD THAT:- It is observed that the appellant has not produced the relevant documents earlier. Now, they claim that they have the documents with them readily and if the issue is remanded back to the adjudicating authority, they will be able to explain the issue. Accordingly, these issues are remanded back to the adjudicating authority for the purpose of verification of the documents and pass an appropriate order regarding eligibility of the credit.
Appeals disposed off.
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2024 (9) TMI 1492
Levy of service tax - Cargo Handling Services - profit margin made on the freight - liability to pay Service Tax on Commission received as an agent - HELD THAT:- These issues stand settled in the appellant’s own case in FLYJAC LOGISTICS VERSUS COMMISSIONER OF GST AND C. EX, CHENNAI SOUTH COMMISSIONERATE [2018 (3) TMI 631 - CESTAT CHENNAI] where in the Tribunal observed 'The impugned order infer that these fees/charges are to be attributed to the ‘Cargo Handling Service’ without identifying the presence of physical handling of cargo by the appellant. We find that there is no evidence to identify the appellant’s activities as “Cargo Handling Agent”. Accordingly, the service tax liability on this account will not survive.'''
Further it was held that 'Regarding tax liability under BAS for incentives received from liners, we note that the matter stand settled by the Tribunal decision in the case of BAX GLOBAL INDIA LTD. VERSUS COMMISSIONER OF SERVICE TAX, CHENNAI [2017 (9) TMI 1264 - CESTAT CHENNAI]. Following the said ratio, we hold that service tax liability of the appellant on this issue cannot sustain.”
The matter stands settled in favour of the appellant, on both the issues with regard to Cargo Handling Services and Business Auxiliary Services, in their own case for the different period. Consequently, the impugned order is set aside and the appeal is allowed.
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2024 (9) TMI 1418
Seeking for issuance of appropriate writ to quash the SCN issued by the 1st respondent - Seeking to restrain the said Authority from adjudicating the same - HELD THAT:- The nature of contentions raised by the petitioner require not only interpretation of the work order which would be factual but also a detailed consideration of the exemption sought for by placing reliance on the N/N. 25/2012-ST.
The contention whether supply of man power involved in garbage collection as well as auto tipper with condition imposed in the supply order fall within the activity of solid waste management, is a matter that requires factual appreciation after taking note of the terms of the supply order. Such exercise cannot be made by this Court in exercise of writ jurisdiction.
Accordingly, the matter is remanded to the stage post show cause notice. Petitioner is also at liberty to make out reply to the show cause notice within a period of 30 days from the date of receipt of certified copy of this order. All contentions of the petitioner are kept open including as referred to by this Court in the discussion made above as well as grounds made out in the writ petition - Petition disposed off by way of remand.
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2024 (9) TMI 1417
Classification of activity of appellant - falls under the category of mining service as claimed by the department or transport service as submitted by the appellant? - period 2009-2010 to 2013-2014 - HELD THAT:- On the basis of 26-AS record it does not show the actual detail of the activity carried out by the appellant. Therefore, in the entire case there is no concrete evidence to establish that the appellant have provided the mining service. The invoices produced by the appellant also do not suggest that the appellant have provided any mining service. The appellant is admittedly a transport contractor providing transportation service. The 3 CD report under Income Tax also shows that the appellant is a transport contractor. As per the 26-AS, the deduction of TDS made by the service recipient is under Section 197 C of the Income Tax which is applicable in case of transportation service. Therefore, in one hand, the revenue could not produce any evidence to establish that the appellant have provided the mining service whereas all the books of account and other documents produced by the appellant shows that they being a transport contractor provided the transportation service of mined goods. Therefore, the appellant’s activity cannot be classified under mining service.
The appellant have also relied upon the board circular F.No. 232/2/2006-CX.4 dated 12.11.2007 wherein at paragraph 5 the board has clarified that transportation of mineral from pithead to a specified location even within the mine or for transportation outside the mine are chargeable to service tax under relevant taxable service i.e. goods transport by road - In the present case since the appellant have transported the mineral in their own vehicle and have not issued any consignment note in this regard, their service is that of transportation of goods by road. Therefore, the demand under mining service is not maintainable.
This issue has been considered by the Hon’ble Supreme Court in the case of Singh transporters [2017 (7) TMI 494 - SUPREME COURT] wherein it was held that transport of coal from pithead to railway siding within the mining area is classifiable under GTA service and not under mining service. Similar view was taken in the case of Rasleela Enterprises Pvt Ltd [2024 (1) TMI 888 - CESTAT NEW DELHI] wherein the tribunal held that transportation charges received are not covered under mining service, therefore, the demand under mining service in the present case will not sustain as the appellant have provided transportation service.
The impugned order is not sustainable and the same is set aside - Appeal allowed.
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2024 (9) TMI 1416
Liability to pay Service Tax under reverse charge mechanism - Directors remuneration paid to the whole time Director who are employed with the company and also non employed Directors to whom the sitting fees is paid.
Salary paid to the whole time director whether liable to service tax or otherwise - HELD THAT:- This issue has been considered time and again by this Tribunal and came to the conclusion that when any remuneration is paid to the Director which is in the form of the salary the same is not liable to service tax. The issue is covered by the decision of RATNAMANI METALS AND TUBES LTD VERSUS C.C.E. & S.T. -AHMEDABAD-III [2024 (3) TMI 10 - CESTAT AHMEDABAD] wherein relying on various judgments, this Tribunal has held that 'In the light of the records submitted by the Appellants, in terms of Board Resolution and Income tax returns submitted under Form – 16, we are of the considered view that the Directors have been appointed as employees of the Appellant’s Company.' - In view of the above decision, in case of whole time Director Mrs. T R Amin remuneration paid to her is not liable to service tax. Hence the service tax related to the remuneration paid to Mrs. T R Amin is set aside.
Levy of service tax on director fees - payment made to non-employed director as a director sitting fees since the same is not in the nature of salary - HELD THAT:- As per the reconciliation chart, it prima facie appears that the appellant have discharged the Service Tax. However the same need to be verified by the Adjudicating authority. Therefore, the matter related to the service tax demand on the remuneration paid to the non-employed directors, the matter needs to be remanded to check the correctness of reconciliation given in the Annexure-C.
The impugned order is modified - Appeal allowed.
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2024 (9) TMI 1415
Short payment of service tax - manpower recruitment or supply agency service - suppression of value of taxable service - it was noticed by the department that noticee have shown less income in their ST-3 returns as compared to the income shown in their profit and loss account for the period covering 2006-2007 to 2009-2010 - HELD THAT:- The appellant have been discharging their service tax liability on the gross amount received by them for manpower recruitment or supply agency service. However, the appellants have also received reimbursement of the certain expenditures made by him on account of the service recipient on the manpower supplied by him to them on account of supply of shoes and uniform, making provision for the provident fund, providing bonus, insurance etc. - It can be seen from the statement of profit and loss account that other than the income on account of the supply of the manpower under head ‘Labour Charges’ the appellant has got reimbursement on account of PF, shoes, insurance, uniform etc. on actual basis which have been made by him.
The issue involved in the present appeal is no longer res- integra. As this Tribunal in case of STAR FREIGHT PVT. LTD. VERSUS C.S.T. -SERVICE TAX - AHMEDABAD [2023 (9) TMI 71 - CESTAT AHMEDABAD] has held that 'there is no suppuration of fact or malafied intention to evade payment of service tax, demand for the extended period shall not be sustainable also on the ground of limitation.'
The impugned Order-In-Appeal is without any merit and is set aside - appeal allowed.
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2024 (9) TMI 1414
Liability of sub-contractor to pay service tax when the main contractor has already discharged the service tax - whether the appellant who is a sub- contractor of the main contractor of L & T is liable to pay service tax on the service on which the main contractor had paid the service tax? - HELD THAT:- The appellant being sub-contractor is liable to pay service tax in view of the Larger Bench’s decision in Commissioner Vs. Melange Developers (P.) Ltd. [2019 (6) TMI 518 - CESTAT NEW DELHI-LB] but extended period cannot be invoked to demand service tax from the appellant. Hence, the demand of service tax confirmed against the appellant for the normal period and for this purpose, the matter remanded back to the adjudicating authority for computing the demand of service tax for the normal period along with interest.
Matter remanded to the adjudicating authority with the direction to do the needful within a period of three months after receiving the certified copy of this order.
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2024 (9) TMI 1360
Short payment of service tax - courier agency services - difference in income reflected in ST-3 returns and profit and loss account, due to the exempted services provided - period 2006-07 to 2010-11 - HELD THAT:- In the case of GIHED documents, the appellant has billed the multiple exhibitors of GIHED in their individual names C/o GIHED Stall No., Penta Freight Pvt. Limited has billed in the name of appellants while issuing Housed Airway Bill in the name of GIHED, Ahmedabad with destination at GIHED, World Gujarati Conference, USA and airlines Jet Airways/Continental Airlines has issued Air-Way Bill to Penta Freight Pvt Limited. Whereas the bills issued by the appellants to individual exhibitors ranges approx. from 250 Kgs to 1000 kg. per consignment, Housed Airway Bill/ Airway Bill issued by Peta prefight Pvt Limited/ Airlines are 5000 Kg. plus thus aggregating multiple consignments of the exhibitors. The description as per Airway Bill reads as “ Exhibition cargo as for display purposes only”.
It would be pertinent to mention that the “time sensitive documents, goods or articles” would be such volume/ weight that an individual could handle the same and deliver it personally. The expression “utilizing the services of a person” to our view mean that the “person” here means an individual and not a juristic person. As is a trade practice and as suggested by the above definition, small goods or articles capable of being handled and delivered by an individual would be covered under the definition of courier service - Larger consignments howsoever may be time sensitive or the requirement for door-to-door delivery, would not be classified as courier services but as cargo. Another factor which is crucial to examine is that normally a courier agency aggregates small consignments of documents, goods or articles and there are different senders and the place of destination for door-to door delivery - when a “courier agency service” is provided for door-to-door delivery, all the transporters taking responsibility to deliver the consignment from the booking stage to the final door delivery would fall under the courier agency service and the cascading effect of taxation can be avoided by input credit claim. It is now well established that a sub-contractor is obliged to discharge tax independent of the main contractor.
There are no record/ data to examine other than the above two specific consignments, we are constrained to remand back the case to the original authority to examine the documents of the appellants afresh in the light of above observations - appeal allowed.
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2024 (9) TMI 1359
Failure to pay service tax - Non-Utilization (NU) Penalty - Water Supply Charges - Miscellaneous Receipts - Transfer Charges - Infrastructure Up gradation fund - HELD THAT:- It has been accepted in the impugned order that the “Infrastructural up-gradation fund” and “transfer fees” were covered under article 243W which is a statutory function of the state government covered under the expressions “Regulation of land use and construction of buildings,' 'Roads and bridges,' and 'Planning for economic and social development” and GIDC is a state undertaking which is performing these functions in the state for development of industry in the state. Once it is accepted that these are the statutory functions of the state, the same cannot be exigible to tax under the period prior to 01.07.2012 also. Further misc. receipts which are stated to be in respect of as sub- letting fees, subdivision charges, amalgamation fees, collateral fees are nothing but necessary for orderly regulation of industrial estate and are for of the infrastructural development activity only. It is an avowed statutory duty of the state to develop industry in the state and any charges collected for such making such development cannot be subjected to tax.
The “infrastructure up-gradation fund”, “transfer fees” and other misc. charges in respect of in respect of as sub-letting fees, subdivision charges, amalgamation fees, collateral fees are necessary for maintenance, management and repairs of the industrial estate under Gujarat Industrial Development Corporation (GIDC), established under the Gujarat Industrial Development Act, 1962 and are not subject to service tax during the impugned period of either before or after 01.07.2012 - no service tax could be charged on the share of “IUF” which was collected from the leaseholders on behalf of the Industrial Associations and reimbursed to them as those does not qualify as consideration for any service provided by GIDC.
The impugned order is set aside - appeal allowed.
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2024 (9) TMI 1358
Taxability of Works Contract Services provided by the appellant - Whether the benefit of entry 12 A (a) of notification 25/2012 was available only for such contracts as were executed before 01.03.2015? - extended period of limitation.
HELD THAT:- Sr. No. 12 of Mega Exemption N/N. 25/2012-ST dated 20.06.2012 as amended vide N/N. 6/2015 dated 01.03.2015 is reported below vide which the entry at serial no. (c) above, was omitted vide N/N. 6/2015-ST dated 01.03.2015 with effect from 01.04.2015. This Perusal is sufficient to hold that for the period in dispute, the condition that contracts for rendering construction/WCS services to be executed prior to 01.03.2015 was no more in existence as it was omitted with effect from 1.04.2015. Resultantly the services as that of construction provided to Government/ local authority/Governmental authority remain exempted from entire service tax liability irrespective the date of contract for the purpose is post 01.03.2015.
In the present case the contract is 19.08.2015 i.e. post-1.04.2015 hence, the condition of contract to be executed prior 1.03.2015 is held to have wrongly being relied upon/invoked by the adjudicating authority below while confirming the demand of Rs.9,56,210. Admittedly the Service in question has been rendered to government/ local authority (PWD) In light of the above the discussion the said demand is held liable to be set aside.
Extended period of limitation - HELD THAT:- It is observed that the non-filing of ST-3 returns is alleged as the act of suppression. However, it has been observed that even in reply to the show cause notice, the appellant had explained that exemption being arising from notification 25/2012 has been the reason to not to file the returns. The said contention of appellant has been accepted, there is no act of suppression being committed by the appellant. Present is not the case of evasion of service tax. Hence, it is held that extended period has wrongly been invoked. The show cause notice itself therefore gets barred by time. The order under challenge, upholding the invocation of extended period is therefore held liable to be set aside.
The order under challenge/ O-I-A is hereby set aside - Appeal allowed.
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2024 (9) TMI 1320
Levy of service tax - Business Auxiliary Services (BAS) - expenses reimbursed to the foreign distributors under reverse charge mechanism - Extended period of limitation - it was held by CESTAT that 'in the instant case, the gross value of taxable service for the purpose of computation of service tax shall be the gross amount paid by the recipient of such service.'
HELD THAT:- No case is made out for grant of stay. However, time of three months granted to the appellant to deposit the demand for the normal period.
The application for stay is disposed of accordingly.
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2024 (9) TMI 1319
Seeking permission of the Court to withdraw the impleadment application - monetary limit involved in the appeal - HELD THAT:- By a Circular dated 6 August 2024 of the Revenue Division, Judicial Cell (Central Board of Indirect Taxes & Customs), Ministry of Finance, the monetary threshold of the tax effect for filing an appeal to the Supreme Court has been increased from Rupees two crores to Rupees five crores. The Additional Solicitor General has confirmed that the tax effect in the present matter is less than Rupees five crores.
The application is permitted to be withdrawn.
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2024 (9) TMI 1318
Denial of CENVAT credit - rent of building taken by the appellant for the purposes of its job workers - taxability of service under renting out immovable property services - HELD THAT:- It is an admitted position that the manufacturer-appellant had shifted his machinery to the rented premises. The raw material was also provided by the appellant. The contract was entered into between the appellant and the job workers to perform the job of manufacturing additionally at the rented premises and handover the final product to the appellant. The premises were thus made available to the job workers for the purpose of performing their work and therefore, the necessary ingredients as required for taxable service would be fulfilled namely that the service has been provided by the job workers in the rented immovable property and secondly the rented immovable property was being utilized for the furtherance of business or commerce by the manufacturer – appellant.
It is found that none of the authorities below examined this aspect while deciding the case and both the appellate authorities proceeded on examining the case in light of the definition of job workers. A perversity has crept in the order as the claim of Cenvat credit is not for the job workers and payment made was for the rent paid for the premises. In the circumstances, it is not found that the orders impugned to be sustainable in the eyes of law and the same are accordingly set aside.
The order dated 28.04.2014, passed by the Customs, Excise and Service Tax Appellate Tribunal is set aside - the appellant entitled for the benefit of Cenvat credit as claimed - appeal allowed.
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2024 (9) TMI 1302
Sanction of rebate (by way of refund) of CENVAT credit of Service Tax paid on input services - N/N. 41 of 2012 –ST dated 29.06.2012 - HELD THAT:- The reading of Section 142 (4) of the CGST Act is clearly reflective of the fact that refund of the tax paid on input or input services under the existing law pertaining to export of goods and services prior to appointed day would be covered by the provision of existing law.
It is also noted that the concerned question of law is no more resintegra and is squarely covered and had come to be considered in Vinod Kumar Diamond India Pvt Ltd [2023 (5) TMI 762 - CESTAT MUMBAI]. Further, in the case of Fine Automotive and Industrial Radiators Pvt Ltd. vs. Commissioner of GST and Central Excise [2019 (11) TMI 1408 - CESTAT CHENNAI], permitted the refund of service tax in similar circumstances.
The appellant is entitled to the refund of the service tax paid in the present case. The impugned order is set aside - appeal allowed.
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2024 (9) TMI 1253
Violation of principles of natural justice - cryptic and non-speaking order - HELD THAT:- After perusing the judgment passed in COMMISSIONER CUSTOMS AND CENTRAL EXCISE VERSUS M/S. JP. TRANSFORMERS [2014 (9) TMI 307 - ALLAHABAD HIGH COURT], and having noticed the basic facts of the present case it is found that the judgment in J.P. Transformers may not be applicable in all aspects/issues, yet the CESTAT has concluded the appeals by simply applying the same.
The impugned order is set aside - matter remanded back to CESTAT for a fresh decision after affording due opportunity to the parties concerned - appeal disposed off by way of remand.
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2024 (9) TMI 1252
Taxability of services provided by the appellant in Jammu & Kashmir - non-inclusion of cost of planning, scheduling etc which happens prior the customers approaching the appellant - place of provision of services outside India - time limitation.
HELD THAT:- In the instance case, it is seen that the service provider is located in the taxable territory. The service recipient is also located in the taxable territory. It is the claim of the appellant that the service is performed partly within India but partly in territory excluded from the jurisdiction of Finance Act, 1994 by virtue of Section 64. According to the appellant place of the performance of Service is relevant.
The learned Counsel has heavily relied on the decision of Larger Bench in the case of M/S COX & KINGS LIMITED (FORMERLY KNOWN AS COX AND KINGS (INDIA) LIMITED) VERSUS COMMISSIONER (TAR) -MUMBAI [2023 (10) TMI 1388 - CESTAT MUMBAI - LB] - The decision of Larger Bench related to outbound tours to locations outside India. In the instant case, the issue relates to conducting of tours within territory India. The decision in the case of M/s. Cox & Kings India Ltd. related to service provided in respect of clients who would travel outside India. Thus, the ratio of this decision is not relevant for the instant case where the destination of tours is within India. In the said decision great reliance has been placed on the provision in Export of Services Rules, 2005. The said Rules relate to the services where either the client or the location of performance or immovable property is located outside India. In the instance Case, the entire services are provided within the territory of India and therefore, the provisions of the Export of Services Rules, cannot be applied to the instant case.
The claim of the appellants that in case of Pre-Planned Package Tours activities of Planning, Scheduling, Organizing and Arranging are already completed before the customer approaches the appellants. In that sense, the only an offer is prepared before the customer approaches and all activities of Planning, Scheduling, Organizing and Arranging happen after the approach of customer. These, facts are however no evidence is available on record to show that the appellant complete the activity of Planning, Scheduling, Organizing and Arranging prior to customer approaching and therefore the said claim remains unsubstantiated and not tenable.
The entire activity of PLANNING, Scheduling, Organizing And Arranging is undertaken in the taxable territory in the instant case. The taxable service is activity of Planning, Scheduling, Organizing and Arranging. In these circumstances, even if the client tours a non taxable territory, while the service of Planning, Scheduling, Organizing and Arranging is provided in taxable territory, the service will remain taxable as provided in taxable territory. The tax has therefore been rightly demanded.
Time Limitation - HELD THAT:- The issue involved in the instant case, Section 64 of the Finance Act, 1994 which specifically excludes the State of Jammu and Kashmir from levy of Service Tax provision. The definition of ‘tour operator’ and “tour” itself was a contested issue which was considered in detail by the Larger Bench in the case of M/S COX & KINGS LIMITED (FORMERLY KNOWN AS COX AND KINGS (INDIA) LIMITED) VERSUS COMMISSIONER (TAR) -MUMBAI [2023 (10) TMI 1388 - CESTAT MUMBAI - LB]. In these circumstances, it is opined that they may not have been any intent to evade payment of duty as a person might hold bonafide belief in the instant case that he is not liable to levy of service tax. No specific act of mis-declaration or suppression has been pointed out in the earlier proceedings. Consequently, the extended period of limitation cannot be invoked for recovery of taxes.
The appeal is therefore allowed partly in so far as the issue of limitation is concerned - The matter is remanded to the original adjudicating authority for determination of duty liability if any within the period of limitation.
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2024 (9) TMI 1251
Taxability of erection, commissioning and installation activity of the machine - Inclusion of service charges within the sale value - HELD THAT:- The appellant have manufactured and supplied the textile machines as per the contract and sale invoice issued to the customers. The appellant is supposed to undertake the supply and also the erection, commissioning and installation of the machine at the customer’s site. The sale value includes all the elements and there is no separate consideration received by the appellant on account of the service related to erection, commissioning and installation. In such case there is no amount available for charging service tax.
The issue has been considered by this Tribunal in the case of C.C.E & S.T. -SILVASA VERSUS AALIDHRA TEXTOOL ENGINEERS PVT LTD [2022 (12) TMI 11 - CESTAT AHMEDABAD] wherein this Tribunal has 'In such position the entire value of the goods has to be taken as sale value, consequently, no service value is involved separately. In the identical set of transaction, this tribunal has consistently taken a view that when there is a manufacturing and sale of the goods on a particular sale price which involves incidental service such as in the present case, no service tax can be demanded once the entire value is towards sale and has suffered the central excise duty.'
From the above decision which has relied upon other decisions of the Tribunal, it is observed that the facts in the aforesaid decision and facts of the present case are identical. Therefore, the ratio of the above judgment is directly applicable.
The demand in the present case is not sustainable. Accordingly the impugned order is upheld - appeal dismissed.
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2024 (9) TMI 1250
CENVAT Credit - input services or not - services availed for proposed expansion of port infrastructure and additional berths - deletion of the phrase "setting up" from the definition of "input service" with effect from 01.04.2011 - HELD THAT:- The case is no longer res integra and relied upon the CESTAT decision in the case of KAKINADA SEAPORTS LTD VERSUS COMMISSIONER OF CENTRAL EXCISE, SERVICE TAX AND CUSTOMS VISAKHAPATNAM-II [2015 (11) TMI 51 - CESTAT BANGALORE]. The Tribunal has inter-alia held that 'If 7th berth does not become operational, naturally the issue as to whether Cenvat credit is admissible when the project is dropped would arise.'
There are no reason to hold a different view taken in the impugned order - The appeal filed by the Revenue is accordingly dismissed.
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2024 (9) TMI 1249
Short-payment of service tax - failure to declare the gross amount received as per the invoices - period from 16.06.2005 to 31.03.2007 - Whether reimbursement expenses incurred by the appellant viz. basic salary, advance, overtime allowance, PF administration and other charges, ESIS, HRA, ex-gratia, medical etc. paid to the employees and recovered from the customers, be includable in the gross taxable value under Section 67 of the Finance Act, 1994 read with Service Tax Valuation Rules in providing ‘Manpower Recruitment and Supply Agency Services’ during the period 16.06.2005 to 31.03.2012?
HELD THAT:- The said issue is no more res integra and covered by the judgement of the Tribunal in the case of M.P Security Force Vs. CCE&ST [2019 (8) TMI 211 - CESTAT NEW DELHI]. In the said case, the appellant M.P. Security Force provided security services and manpower supply service during the relevant period. The question before the Tribunal was whether the component of salary, EPF, ESI and uniform allowances etc. be included in the gross amount charged to their clients. Following the judgment of the Hon’ble Supreme in UOI Vs. Intercontinental Consultants and Technocrats Ltd.’s case [2018 (3) TMI 357 - SUPREME COURT] interpreting the expression “such services” under Section 67(1) of the Finance Act, 1994, the Tribunal held 'the appellant is entitled for the abatement towards the payment made on account of contribution towards ESI, EPF and PF and also towards wages and salaries while computing the assessable value in terms of Section 67 of the Act for the payment of service tax.'
Thus, the administrative charges collected in providing Manpower Recruitment and Supply Agency Service, is only to be part of the gross taxable value and all reimbursable expenses, salary, bonus, etc. paid to the employee by the appellant and collected from their clients cannot be included within the scope of gross taxable value under Section 67(1)(i) of the Finance Act, 1994 during the relevant period from October 2007 to March 2012.
The impugned order is set aside - Appeal allowed.
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2024 (9) TMI 1248
CENVAT Credit - exempt service or not - Requirment to pay service tax under Rule 6(3) of Cenvat Credit Rules, 2004 - non-maintenance of cenvat credit account for inputs and input services used for providing exempted output services - investment of surplus cash in mutual funds - trading of securities - HELD THAT:- Considering the fact that the similar issue came up before this Tribunal in the case of M/S. COGNIZANT TECHNOLOGY SOLUTIONS INDIA PRIVATE LIMITED VERSUS THE COMMISSIONER OF GST & CENTRAL EXCISE, CHENNAI [2024 (9) TMI 922 - CESTAT CHENNAI] decided in favour of the appellant wherein it has been held 'the authorities below have grossly erred in demanding the tax on the ‘investment’ made, by treating the same as ‘service’ although exempted.'
As this Tribunal in the case of Cognizant Technology Solutions India Pvt.Ltd has dealt with investment of surplus cash in mutual fund which does not amount to trading activity, there are no merit found in the impugned order and the same is set aside - appeal allowed.
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9911796707
