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Service Tax - Case Laws
Showing 301 to 320 of 30277 Records
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2024 (9) TMI 775
Declaration/application filed by the appellant under VCES - entitlement to immunity from penalty, interest or any other proceedings under the Chapter in terms of Section 108(1) of the 2013 Act - HELD THAT:- Support found from the decision of the Allahabad Bench of this Tribunal in the case of M/S GOENKA MOTORS (P) LTD. VERSUS COMMISSIONER OF CENTRAL EXCISE & SERVICE TAX, ALLAHABAD [2017 (11) TMI 883 - CESTAT ALLAHABAD], wherein in similar circumstances, the tax dues were paid by the assessee under Section 107, it was concluded that neither the demand under Section 111 of the Finance Act, 2013 nor the demand under Section 73 of the Finance Act, 1994 was maintainable in view of the immunity granted to the appellant by the provisions of sub-section (1) of Section 108 of the Finance Act, 2013 and accordingly, the order-in-original impugned therein was set aside and the appeal was allowed.
Since the controversy in the present case is squarely covered by the aforesaid decision of the Allahabad Bench, the declaration filed by the appellant under VCES stands allowed.
The impugned order is set aside - The appeal is, allowed.
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2024 (9) TMI 774
Taxability - Tolerating the act - Net Present Value (NPV) paid by the appellant in the Compensatory Afforestation Fund (CAMPA Fund) - Change for usage of the forest land falling under the said project for non-forest purposes - Declared Service under Section 66E(e) of the Finance Act, 1944 - time limitation - suppression of facts or not.
Taxability - HELD THAT:- The appellant has made payments of NPV to the CAMPA Fund, as a result of the constitutional mandate enshrined in Article 48 of the Constitution of India. It is also observed that the charges are collected in pursuance of the decision of the Hon’ble Supreme Court. From the impugned order, it is observed that the adjudicating authority has considered the payment of NPV as a consideration for the 'Declared Service' as defined under Section 66E(e) of the Finance Act, 1944.
The observation that the Government is ‘tolerating the act’ of the appellant against a ‘consideration’ is legally not sustainable inasmuch as one cannot envisage the situation as apprehended by the Department that by collecting NPV, the Government is tolerating the act of the appellant.
The issue regarding taxability of the payment of NPV in the CAMPA Fund stands decided by this Tribunal in the case of M/S MAHANADI COALFIELDS LIMITED (ORIENT AREA) VERSUS COMMISSIONER OF CGST & CENTRAL EXCISE, ROURKELA. [2023 (7) TMI 1336 - CESTAT KOLKATA], wherein this Tribunal held that 'Equally unthinkable is to say that the Government employee has tolerated the non-sanction of leave during his service as per an agreement and in consideration, received the leave encashment at the time of retirement and to charge service tax on the amount received as leave encashment. These, cannot be called taxable services of tolerating a situation by any stretch of imagination. No service tax can be levied on the amounts received by the appellant as compensation.'
Thus, the clearance granted by Ministry of Environment, Forest and Climate Change for usage of the forest land falling under the said project for non-forest purposes, cannot be considered as a 'Declared Service' as defined under Section 66E(e) of the Finance Act, 1944 and the charges of NPV paid by the appellant cannot be considered as a 'consideration' for the said service. Accordingly, the demand of service tax along with interest, in the impugned order is not sustainable.
Time limitation - suppression of facts or not - HELD THAT:- It is also observed that the appellant has not suppressed any information from the Department. In fact, the entire payment of NPV into the CAMPA Fund is as per the law. Hence, extended period cannot be invoked to demand Service tax in this case - As there is no suppression of facts with intention to evade the tax has been established in this case, penalty under Section 78 of the Finance Act, 1994 is not imposable on the appellant.
The impugned order is set aside - appeal allowed.
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2024 (9) TMI 773
Re-quantification undertaken by the ld. adjudicating authority - requirement of dropping a huge portion of the demand on this count alone - The Revenue took the view that since they were not paying to the extent of 10% of the invoice value, the assessee-appellant is not eligible to avail CENVAT Credit, to that extent - HELD THAT:- The issue is no more res integra. The Delhi Bench of the Tribunal in the case of M/S HINDUSTAN ZINC LIMITED VERSUS CCE, JAIPUR-II [2017 (4) TMI 1323 - CESTAT NEW DELHI] has held 'identical issue decided in the case of M/s. Hindustan Zinc Ltd. Versus C.C.E. Jaipur-II [2017 (1) TMI 373 - CESTAT NEW DELHI], where it was held that in case of any amount retained or discounted after the invoices were issued, the credit need not be changed and full credit of service tax paid to the service provider will be eligible for credit'.
The ratio laid down under these Tribunal decisions are squarely applicable to the facts of the present case. Accordingly, the impugned order is set aside and the appeal filed by the assessee-appellant is allowed.
Appeal disposed off.
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2024 (9) TMI 772
Time limitation for filing refund claim - refund claims have been filed beyond the stipulated time limit of one year - whether service tax paid on input services used for export of medicines for the period April, 2013 to January, 2014, is refundable in terms of N/N. 41/2002-S.T. dated 29.06.2012 or not? - HELD THAT:- The original authority had scrutinized the refund claim filed by the appellants and after recording his findings that the appellants have not filed refund applications within one time had rejected the refunds.
It is found that in order to claim the refund of service tax paid on the input services on export of goods as per the N/N.41/2012-S.T. dated 29.06.2012, the requirements are that in respect of various extent/conditions prescribed therein, have to be fulfilled by the claimant/ exporter and the refund shall be granted in the manner specified therein. Further, in terms of Section 11 B of the Central Excise Act, 1944 as made applicable to matters relating to service tax under Section 83 of the Finance Act, 1994, any application for refund of duty/tax shall be filed before the expiry of one year from the relevant date prescribed therein. On the above basis and as per the condition 3(g) of the aforesaid Notification, the refund claim shall be filed within one year from the date of export of the goods for which such input services were used.
The case in hand does not relate to the first category of unconstitutional levy or the third category of refund on the basis of the judgement delivered by the Hon’ble Supreme Court. It squarely falls under the second category of duty/tax paid by the claimant which could at the most be treated as illegal levy. However, even in such cases, the legal provisions of Section 11B of the Central Excise Act, 1944 as made applicable to service tax, would apply for refund of service tax. With respect to the time limit for filing of a refund claim in such case, it is mandated under said Section 11B of the Act of 1944 that such refund claim is required to be filed within one year from the relevant date. It is a fact on record that the Notification No.41/2002-S.T. dated 29.06.2012 under which the refund has been filed in this case, had prescribed that the refund claim shall be filed within one year from the date of export.
As regards the disputed part of the refund claim relating to Freight, Banking and other Financial services for which the appellants have filed this appeal, it is found that the respective refund claims have been filed beyond the prescribed time limit of one year from the relevant date, and therefore these are clearly barred by limitation of time as mandated under Section 11B of the Central Excise Act, 1944, as made applicable to service tax under Section 83 of the Finance Act, 1994 and as per condition 3(g) of the Notification No. 41/2012-S.T. dated 29.06.2012.
There are no grounds for interfering with the impugned order passed by the learned Commissioner (Appeals). Therefore, the appeal preferred by the appellants is liable to be dismissed on the grounds of time bar.
The appeal filed by the appellants is dismissed.
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2024 (9) TMI 702
Applicability of the exemption provisions under the N/N. 30/2012 dated 20 June 2012 - CENVAT Credit - HELD THAT:- The appeal failed to raise any dispute in respect of the findings which were rendered by the Commissioner with regard to the applicability of Clause (e) of the Notification 30/2012 dated 20 June 2012.
The appeal fails to place on the record any material which may have established that the findings returned with respect to the provision of services to body corporates was either arbitrary or perverse.
There are no ground to entertain the instant appeal. The same fails and shall stand dismissed.
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2024 (9) TMI 701
Recovery of service tax under section 73 (2) of the Finance Act, 1994 read with section 174 of the Central Goods and Service Tax Act, 2017 with interest and penalty - activity of repair and maintenance, if provided along with material, merits classification under works contract service and the amount on which VAT has been discharged by the assessee has to be excluded from the value of works contract to ascertain the value of taxable services provided by the assessee or not - invocation of Extended period of limitation.
HELD THAT:- The decision of the Tribunal in M/S. SAMTECH INDUSTRIES AND OTHERS VERSUS CCE. KANPUR AND OTHERS [2014 (4) TMI 995 - CESTAT NEW DELHI] clearly holds that when invoices are issued showing the value of the goods used and the service charges separately, service tax would be chargeable only on the service/labour charges and the value of goods used for repair would not be includable in the assessable value of the service.
The Commissioner was not justified in including the value of spare parts in the assessable value of service, as the contract was a composite contract involving supply of goods (spare parts and consumer bills) as well as provision of services (repair and maintenance). It needs to be noted that service tax was not leviable on composite contracts up to 01.07.2012 and the period involved in this appeal is from April 2009 to June 2012. Such being the position, the impugned order dated 30.07.2018 passed by the Commissioner cannot be sustained.
The impugned order dated 30.07.2018 is, accordingly, set aside - Appeal allowed.
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2024 (9) TMI 700
Levy of service tax - reverse charge mechansim - rental amount paid to the directors of the company on account of “renting of immovable property” - levy of penalty u/s 78 of FA - misinterpretation of provisions of Entry 5A of Notification No.30/2012-ST dated 20.06.2012, as amended, by Notification No.45/2012-ST dated 07.08.2012 - whether the service tax can be levied under the RCM on the appellants, when the service of renting of immovable property provided by the directors was in their individual capacity and not as the director of the company?
HELD THAT:- In the present case, the payment made by the company to the directors is in the nature of office rent as shown in the audited Profit & Loss Account. This clearly relates to the fact that the service provided by the director is not as directors as renting of the building on rent does not fall under the director’s service. It is a matter of chance that the renting service provided by a person happens to be a director. If the liability towards the services rendered by a person in his individual capacity is fastened on the company where he is a director, it would lead to extending the unwarranted liability on the company. The intention of the government is not that any activity/service which is performed by the director, the company would be liable to pay the tax.
This Tribunal in the case of Cords Cable Industries Ltd. [2023 (4) TMI 441 - CESTAT NEW DELHI] considered the issue of payment of service tax under RCM and observed that the directors in that case were providing service of “renting of immovable property” not as directors of the appellant company but in their individual capacity as owners of the premises and as the directors of the appellant and in such a situation, the appellant could not have been asked to pay the service tax on RCM - there are no good reason to differ from the view taken by the Co-ordinate Bench in M/s.Cords Cable Industries Ltd. Following the said decision, it is held that the appellant company cannot be saddled with the liability of service tax under RCM when the service of “renting of immovable property” has been provided not in the capacity of the directors of the company but in their personal capacity.
Imposition of penalty under Section 78 of the Act - HELD THAT:- The amount of cenvat credit taken by the appellant on the exempted services was in contravention of the provisions of the Finance Act and the Rules made thereunder with intent to evade payment of duty. The Authorities below are correct in observing that the amount of cenvat credit was reversed only after the audit has taken place - instead of directing the imposition of mandatory penalty of 100%, the Adjudicating Authority had granted liberty to the appellant by directing that the imposition of penalty shall be limited only to 25%, subject to the condition that such reduced penalty is also paid within 30 days of the date of receipt of the order. Hence no interference is called for in imposition of penalty. Accordingly, there are no error in the imposition of penalty.
The appellant is also required to pay the balance amount of interest from the sum of Rs.51,088/- as they had deposited only Rs.12,469/-. It is a settled law that the levy of interest is automatic and hence, the appellant is liable to pay the same under Section 75 of the Act.
The impugned order is partly set aside - The appeal is accordingly allowed partially.
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2024 (9) TMI 699
Exemption from service tax - repair & maintenance of electrical transformers - N/N. 11/2010-S.T. dated 27.02.2010 - HELD THAT:- The appellant did not file any written reply to the show cause notice nor did he appear for personal hearings, as recorded by the original adjudicating authority. It is also noted that the appellant filed an appeal before the Commissioner (Appeals) but failed to appear when personal hearings were fixed, as has been recorded in para 4 of the Order-in-Appeal dated 31.01.2018.
The impugned order has noted that the appellant has not been able to establish that appropriate VAT was paid on the materials used in the provision of such service. Further, it has been alleged by the Department that the appellant has artificially divided the amounts in their bills, for which there is no explanation by the appellant. There has been no submission by the appellant regarding their liability to pay service tax on GTA. These are questions of fact, which needs to be examined at the original level.
This case needs to be remanded to the original adjudicating authority to examine the allegations afresh. The appellant is also directed to ensure that a detailed response to the allegations be filed before the original authority, along with all supporting documents such as bills, VAT returns, invoices, Contract, Work Orders etc and other relevant documents to buttress their case.
Appeal allowed by way of remand.
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2024 (9) TMI 698
Classification of services - Business Auxiliary Service or under Tour Operator Service? - Appellant is engaged in multi-level sales promotion activities and has entered into contracts with various corporate clients whereby it sold vouchers in the form of gift, free holiday and free airline ticket to corporate clients against a consideration - interest and penalty - Extended period of limitation.
HELD THAT:- In the present case, the Appellant has entered into contracts with various corporate clients whereby it sold vouchers in the form of gift, free holiday and free airline ticket to corporate clients against a consideration and on that consideration, it is discharging the service tax liability under the head ‘Tour Operator‘ after availing abatement under N/N. 1/2006-ST dt. 01.03.2006 amended vide Notification No. 38/2007-ST dt. 23.08.2007.
It is found that in the impugned order, the demand has been confirmed under the head ‘Business Auxiliary Service‘ for providing vouchers to the customers of corporate clients on their behalf, but for complying under the said clause, the service provider should render the services to the third party which would ordinarily be rendered by the client i.e. the service provider steps into the shoes of the client; whereas, in the instant case, the corporate clients are engaged in manufacture, sale and trading of goods and not engaged in providing ‘Tour Operator Service‘ i.e. in the business of planning, scheduling, organizing or arranging tours, therefore, it cannot be said that the Appellant is providing ‘Tour Operator Service‘ on behalf of the corporate clients when the corporate clients itself are not Tour Operators.
The corporate clients were immune from all costs, actions, claims, suits, proceeding etc and hence, the corporate clients were not responsible for the services provided by the Appellant to the customers. Further, the customers of corporate clients are not bound to avail the benefits under vouchers by virtue of the agreement between the Appellant and the corporate clients. Consensus-ad-idem is required between the Appellant and the customers - the Appellant directly provided the services to the customers without any intervention of the corporate clients and the Appellant is rendering the services under the head of ‘Tour Operator‘ and has correctly availed the abatement under the N/N. 1/2006-ST dt. 01.03.2006 amended vide 38/2007-ST dt. 23.08.2007 after fulfilling the conditions as prescribed in these notifications.
Extended period of limitation - HELD THAT:- The show cause notice invoking extended period of limitation has been issued solely on the basis of audit report without further investigation into the matter. It has been consistently held by the Courts that for invoking the extended period of limitation, intention to evade tax should be established, whereas in the present case, the Appellant has been regularly filing ST-3 returns wherein the abatement availed by the Appellant is duly declared and the department was well aware about the Appellant‘s activities; therefore, extended period of limitation cannot be invoked. In terms of the proviso to Section 73(1) of the Act, the extended period of limitation is applicable only in cases where service tax has not been levied/paid or has been short levied/short paid or erroneously refunded by reason of fraud or collusion or wilful ms-statement or suppression of facts or contravention of any provisions of the Act or the Rules made thereunder with an intent to evade payment of service tax.
Interest and penalty - HELD THAT:- The question of interest and penalty does not arise because the demand of service tax itself is not sustainable.
The impugned order is not sustainable in law and is liable to be set aside - Appeal allowed.
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2024 (9) TMI 697
Interest on amount refunded - amount refunded was pre-deposit or not - relevant date for calculation of interest - HELD THAT:- The issue involved in the present case is no longer res-integra and is squarely covered by the decisions of Hon’ble Supreme Court in Ranbaxy laboratories Ltd. [2011 (10) TMI 16 - SUPREME COURT] where it was held that 'ever since Section 11BB was inserted in the Act with effect from 26th May 1995, the department has maintained a consistent stand about its interpretation. Explaining the intent, import and the manner in which it is to be implemented, the Circulars clearly state that the relevant date in this regard is the expiry of three months from the date of receipt of the application under Section 11B(1) of the Act.'
Undisputedly appellant is entitled to interest on the amounts refunded to him after the dispute was finally determined in their favour by the order of this tribunal. However the interest as per these orders would necessary be governed by the provisions of section 11BB and should be paid after expiry of three months from the date of receipt of the application for refund and not from the date of deposit as has been held by the original authority in the orders dated 09.07.2019 and 18.07.2019. Even if it is held that appellant was entitled to refund of interest as per section 35 FF then also the interest could not have been paid from the date of deposit, in view of the Proviso to section 35FF, which provided that in respect of the amounts deposited prior commencement of Finance (No. 2) Act, 2014 the provisions as contained in erstwhile section 35FF shall apply.
Appellant is entitled to interest if any if the refund of the amount deposited was made beyond the period of three months from the date of refund application communicating the order in their favour to the jurisdictional Deputy/ Assistant Commissioner.
In the present case the refund applications for refund of amount deposited under protest were allowed and the amounts paid vide order dated 11.06.2019 within a month of the receipt of the application. Thus appellant would not be entitled to any interest as per the section 11BB or Section 35 FF of Central Excise Act, 1944.
Appeal dismissed.
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2024 (9) TMI 696
Amendment in Rule 6 of CCR is retrospective or prospective? - applicability of amendment to the outstanding balance available as on 10.05.2008 or only prospective in respect of entries made in the books of accounts post 10.05.2008 - HELD THAT:- In the instant case, the period of dispute is for the tax pending on such outstanding amounts as reflected in their Books of accounts, immediately after the amendment. Undoubtedly, these were for services received during the period prior to the said amendment, as the payment had not been received. Since, the liability for payment of service tax arises upon receipt of payment towards taxable services, which has admittedly not been received by the appellant, there was no scope or occasion to discharge the service tax liability in terms of Rule 6 ibid as it had existed at the relevant disputed period.
The confirmation of service tax and interest liability in the impugned order that amendment of Rule 6 ibid will have retrospective effect defeats the legislative intent and also against the principles of legal jurisprudence. It is also noted that payment of service tax in respect of transactions between associated enterprises on the basis of book entry was introduced only w.e.f. 10.05.2008 by incorporating the Explanation clauses in both Section 67 of the Finance Act, 1994 and Rule 6 ibid. The service tax statute holding the field at the relevant point of time did not contain any provision for demand of service tax by the authorities, prior to realization of the value of taxable services - N/N. 19/2008 introducing Explanation to Rule 6 ibid, nowhere specifies that the same will have retrospective application to deal with the past transactions.
The service tax demand cannot be confirmed on the service fee not realized during the disputed period from the associate enterprise, even if the same has been reflected in the books of accounts of the appellant as the amount outstanding.
There are no merits in the impugned order, and thus, the same is set aside - appeal allowed.
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2024 (9) TMI 695
Recovery of Cenvat credit with interest and penalty - restriction on Cenvat credit utilization up to 20% on the ground that the appellant was providing taxable as well as exempted services - extended period of limitation.
HELD THAT:- As per the appellant, the service rendered by him were not for the purpose of sale or telemarketing and therefore, the same cannot be described as service by a call centre for the purpose of said exemption Notification No. 08/03-ST dated 20.06.2003, this notification exempts the service provided by a call centre from payment of service tax, whereas, the Department it is a call centre service which is exempted service and therefore credit utilization is restricted up to 20%. It is further found that as per the terms of the agreement entered into by the appellant with M/s Spice Communications Limited. The appellant is supplying the customer care service under BAS by providing call support service and it has been held in the case of PHOENIX IT SOLUTIONS LTD. VERSUS COMMISSIONER OF CENTRAL EXCISE, VISAKHAPATNAM [2011 (1) TMI 642 - CESTAT, BANGALORE] wherein it has been held that assessee providing call centre service on behalf of the client would fall under BAS within the purview of Service Tax.
In the case of M/S. IBM DAKSH BUSINESS PROCESS SERVICES PRIVATE LTD. VERSUS CCE, DELHI-III [2014 (5) TMI 616 - CESTAT NEW DELHI], it was held that call centre service provided on behalf of the client would fall within the purview of Business Auxiliary Service.
Extended period of limitation - HELD THAT:- The affairs of the appellant were in the knowledge of the Department as the Department conducted audit on 16.11.2005 and 08 to 10.01.2007, whereas, the show cause notice was issued on 26.03.2010 after a considerable delay of three years which is beyond the period of limitation - in the case of GOLDEN LAMINATES LTD. VERSUS COLLECTOR OF C. EX., DELHI-III [2000 (1) TMI 611 - CEGAT, NEW DELHI], the Tribunal held that when the facts are already known to the Department, it cannot be alleged that the appellant had suppressed or mis-declared any material facts with intention to wrongly avail the benefit of exemption from duty resulting in evasion of payment of duty.
The impugned order is not sustainable in law on merits as well as on limitation - appeal allowed.
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2024 (9) TMI 694
Refund of service tax paid to the service providers on service received - specified services - services can be considered as wholly consumed within SEZ unit or not - Revenue’s contention is that since services related to erection, installation of transmission line for the transmission of power which is generated in the SEZ, the said transmission line is located outside SEZ area - HELD THAT:- It cannot be said that the service was exclusively used in the authorized operation of SEZ. On this, the Revenue cannot be agreed upon and the Learned Commissioner (Appeals) is completely agreed for the reason that for the purpose of generation of electricity and transmission thereon it is very obvious that the transmission line can travel beyond SEZ also but the fact remains that transmission line is used for the transmission of the electricity generated in the SEZ. Therefore, it can be conveniently concluded that the transmission line installed even though outside the SEZ but the same is used for the authorized operation of the SEZ unit. Therefore on this ground Revenue seeking of refund will not be sustainable.
As regard other issues that the appellant are operating their business in SEZ as well as in DTA, and the electricity generated in appellant’s unit is used for both the operations. Therefore, the Revenue’s contention is that the services on which refund under Notification No. 12/2013-ST claimed by appellant is not tenable - all the identical facts has been considered by this Tribunal consecutively in the two judgments and held that on this ground refund cannot be denied - reliance can be placed in ADANI POWER LTD. VERSUS CST AHMEDABAD AND VICE-VERSA [2016 (3) TMI 231 - CESTAT AHMEDABAD].
There is no infirmity in the impugned order of the Commissioner (Appeals) - the impugned order is upheld - Appeal of Revenue dismissed.
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2024 (9) TMI 693
Classification of service - Manpower Recruitment or Supply Agency Service or not - assisting fire safety service to handle any emergency arising at the client’s premises and to maintain fire and safety equipments in working condition - HELD THAT:- The annual contract was for assisting fire fighting and to handle any emergency arising due to fire incidence in the complex of M/s. Chambal Fertilizers and Chemicals Limited and to maintain fire safety equipments in healthy and working condition and for this purpose, the appellant are being paid an amount of Rs. 1,63,000/- per month. In the terms of contract, it is the responsibility that appellant to make statutory monthly payment like PF, ECI etc. for his employees and the receipt of the same need to be forwarded to the unit entering into the contract for fire safety with the appellant.
From the work order mentioned, there is no contract for providing man power and the same is for specific purpose for fire fighting and to handle any emergent situation as well as for maintenance and keeping the fire fighting equipments in good condition. The activity undertaken by the appellant does not fall under the category of Manpower Recruitment or Supply Agency Service.
The impugned order-in-appeal is not sustainable - appeal allowed.
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2024 (9) TMI 684
Refund of service tax paid by them on the ocean freight - barred by time limitation in terms of Section 11B(5)(B)(ec) of the Central Excise Act, 1994 made applicable to Finance Act, 1994 vide Section 83 of the Finance Act, 1994 - aplicability of Section 142(3) of the CGST Act, 2017 - HELD THAT:- The refund application was filed by the Appellant on 23.11.2020 in pursuance of decision of Hon’ble Gujarat High Court in case of SAL Steel Ltd. dated 06.09.2019 [2019 (9) TMI 1315 - GUJARAT HIGH COURT]. In this view of the fact, the revenue authorities were of the view that the refund claim filed by the Appellant is time barred as per the provisions of Section 11B of the Central Excise Act, 1944 made applicable to Finance Act, 1994 vide Section 83 of the Finance Act, 1994.
Hon’ble Supreme Court dismissed the civil appeal filed by the revenue department on 01.09.2023 in case of M/s. Kiri Dyes & Chemicals Ltd. [2023 (9) TMI 305 - SC ORDER] holding that levy of service tax is not maintainable. Therefore, it was possible for the Appellant to file the refund claim within one year from 01.09.2023 i.e. up to 31.08.2024. Admittedly in the facts of the present case the Appellant have filed the refund claim on 23.11.2020 i.e. much before 31.08.2024.
It is noted that the time limit of one year from the “relevant date” for filing of refund claim is only in Section 11B(1) of the Central Excise Act, 1944. The provisions of Section 142(3) of the CGST Act, 2017 states that only provisions of sub-section (2) of Section 11B of the Central Excise Act, 1944 is to be looked in to process the refund. For this reason also the rejection of the refund claim in the facts of the present case is not sustainable.
Thus, the Appellant is entitled to refund of service tax paid by them on the ocean freight during the period of dispute in the present case even in terms of Section 142(3) of the CGST Act, 2017 - the impugned order is set aside - appeal allowed.
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2024 (9) TMI 620
Maintainability of appeal - low tax effect - Levy of Service Tax - Commercial Training or Coaching Services - HELD THAT:- This appeal has to be dismissed on the ground of low tax effect as being covered by the Circular dated 06.08.2024 issued by the Revenue Division, Judicial Cell (Central Board of Indirect Taxes & Customs), Ministry of Finance.
The Civil Appeal is disposed of. The question of law is however kept open.
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2024 (9) TMI 619
Levy of service tax - ex-gratia job charges amount received by the appellant from M/s Parle - HELD THAT:- The issue in hand is no longer res-integra as the same has been decided in matters other contract manufacturers of biscuit of M/s Parle - reliance placed in M/S K.N. FOOD INDUSTRIES PVT. LTD. VERSUS THE COMMISSIONER OF CGST & CENTRAL EXCISE, KANPUR [2020 (1) TMI 6 - CESTAT ALLAHABAD] where it was held that 'In the instant case, if the delivery of project gets delayed, or any other terms of the contract gests breached, which were expected to cause some damage or loss to the appellant, the contract itself provides for compensation to make good the possible damages owning to delay, or breach, as the case may be, by way of payment of liquidated damages by the contractor to the appellant. As such, the contracts provide for an eventuality which was uncertain and also corresponding consequence or remedy if that eventuality occurs. As such the present ex-gratia charges made by M/s. Parle to the appellant were towards making good the damages, losses or injuries arising from “unintended” events and does not emanate from any obligation on the part of any of the parties to tolerate an act or a situation and cannot be considered to be the payments for any services.'
From the above decision, it can be seen that the facts in the above decision and in the present case are absolutely identical and issue involved is also common therefore the ratio of the above decision is directly applicable in the present case.
In the present appeal also the impugned order is not sustainable and the same is set aside - Appeal is allowed.
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2024 (9) TMI 618
Liability of service recipient to pay service tax - Service of Supply of Manpower - Service Tax on the 75% of the taxable value was demanded from the appellant being service recipient, despite the fact that the service provider has paid Service Tax on the 100% of the value of service received by the appellant - N/N. 30/2012-ST dated 26.06.2012 as amended by N/N. 07/2015-ST dated 01.03.2015, read with Rule 2 (d) (i) (F) of the Service Tax Rules, 1994 - HELD THAT:- Even both the lower authorities have not disputed that the service provider has paid Service Tax on ‘supply of manpower service’ on the 100% of the taxable value. Therefore, even as per the legal provision the appellant is liable to pay Service Tax on the 75% of the taxable value, the same cannot be demanded as the same stand paid by the service provider.
The Service Tax is payable on the service as per the rate and on the value as provided under the Finance Act, 1994. Once the Service Tax has been discharged irrespective by any person on the same activity, on the same value Service Tax cannot be demanded twice by the Government otherwise it will amount to unjust enrichment to the government, which is not permissible in law.
Thus, it is settled that Service Tax cannot be demanded twice, once the proper Service Tax was discharged irrespective of the payment made by any person - since admittedly the entire Service Tax has been discharged on the ‘supply of manpower service’, no further demand exist and the same cannot be recovered.
The impugned order is set aside - Appeal is allowed.
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2024 (9) TMI 617
Principles of natural justice - the adjudicating authority/ Commissioner (Appeals) has completely ignored the submissions made by the appellant before them and confirmed/upheld the huge demand - non-payment of service tax - Construction of Complex Service and Commercial or Industrial Construction Service - taxability of services provided by the appellants to education institutions and government departments - HELD THAT:- It is found that some of the vital submissions made before this Tribunal but neither raised before the Adjudicating Authority/Commissioner (Appeals) nor considered by the said authorities. It is observed that the levy of Service Tax under the Construction must be based on the terms of the contract. Therefore, to arrive at a final conclusion of levy of service tax on the services in question the terms of the contract vis-à-vis the judgments delivered which were relied upon by the appellant needs to be considered. However, the adjudicating authority has not properly examined the facts/terms of the contract and he has not seen the light of judgments given subsequently on the identical issue. Since the issue involved is mixed of facts and law it can be ascertained only after considering the condition therein of each case - the entire matter needs to be relooked and to be decided a fresh.
The impugned order set aside - the appeals are allowed by way of remand to the adjudicating authority, for passing a fresh order.
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2024 (9) TMI 616
Valuation of security service - inclusion of accommodation provided by the service recipient to the security staff in the in the gross value of the security service or not - HELD THAT:- The issue has been decided in case of C.G.S.T,C.C.E., DEHRADUN VERSUS COMMANDANT CISF UNIT [2019 (2) TMI 1175 - CESTAT NEW DELHI] where the Delhi Bench of the Tribunal has held that 'If it is consideration, then only Rule 3 Value of Determination rules will come into picture. But as observed by Commissioner(Appeals) vide the Order under challenge that there is no evidence on the point about any amount either in terms of HRA was ever paid to the respondent/CISF, the question of notional value of the free accommodation provided cannot form the part of the gross value which has to be taxed under Section 67 of the Act. We therefore do not find any infirmity in the findings of Order under challenge.'
The present impugned order is not sustainable - Hence, the impugned order is set aside and appeal is allowed.
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