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Service Tax - Case Laws
Showing 321 to 340 of 30277 Records
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2024 (9) TMI 554
Levy of service tax - material consumed during retreading of tyres - value of the services rendered was below the threshold limit in terms of N/N. 6/2005 dated 1.3.2005.
Whether Service Tax is leviable on the total amount charged for retreading of tyres including the value of material have been used and sold in the execution of Contract or only on service portion? - HELD THAT:- The learned Commissioner observed that that the identical issue has already been decided by the Apex Court in the case of SAFETY RETREADING COMPANY (P) LTD. VERSUS COMMISSIONER OF CENTRAL EXCISE, SALEM, M/S TYRESOLES INDIA PRIVATE LMITED VERSUS THE COMMISSIONER OF CENTRAL EXCISE, GOA AND M/S LAXMI TYRES VERSUS COMMISSIONER OF CENTRAL EXCISE, PUNE [2017 (1) TMI 1110 - SUPREME COURT] where it was held that 'the appellant is liable for service tax on service portion only which is below threshold limit of SSI exemption.'
Service tax on the service portion, which is below the threshold limit of SSI exemption - HELD THAT:- The learned Commissioner seriously erred in observing that the appellant is liable to service tax on the service portion, which is below the threshold limit of SSI exemption. Once the finding is that the value of the service portion is below the threshold limit, they are entitled to exemption from service tax. The appellant is entitled to avail the benefit of the prescribed limit in terms of N/N.06/2005-ST dated 1.3.2005, whereby the taxable services not exceeding Rs.Four Lakhs were exempted in any financial year. The threshold exemption limit was enhanced to Rs.Eight Lakhs w.e.f. 01.04.2007 and Rs.Ten Lakhs w.e.f. 01.04.2008, which is applicable to the period in question - the appellant is entitled to exemption from the whole of the service tax leviable thereon under Section 66 of the Finance Act. There is an error in the impugned order when despite the findings being in favour of the appellant/assesee, the appeal filed by the Revenue was allowed.
The appellant is liable to service tax on service portion only, which is below the threshold limit needs to be set aside - Appeal allowed.
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2024 (9) TMI 553
Recovery of short paid service tax with interest and equal penalty - Demand of service tax where the payment of 50% of tax is by the appellant and the remaining 50% is made by the service recipient - HELD THAT:- The issue whether the demand of service tax is sustainable when the payment of 50% of tax by the appellant and the remaining 50% by the service recipient, is no longer res-integra and has been decided by the Karnataka High Court in M/S. ZYETA INTERIORS PVT. LTD. SHRI. AMIT PRAKASH, DIRECTOR OF M/S. ZYETA INTERIORS PVT. LTD, VERSUS THE VICE CHAIRMAN SETTLEMENT COMMISSION, CHENNAI, THE PRINCIPAL COMMISIONER OF GST AND CENTRAL EXCISE, BANGALORE [2021 (10) TMI 233 - KARNATAKA HIGH COURT] where it was held that 'once the tax liability is discharged regardless of the persons who discharge, the Assessee cannot be asked to pay the tax again.'
Following the decision of the Karnataka High Court, the Principal Bench in M/S. AADARSH SRI SAI MANPOWER SOLUTION (P) LTD., SHRI MADAN SINGH RAWAT, DIRECTOR AND SHRI TRILOK SINGH RAWAT, DIRECTOR VERSUS COMMISSIONER, CUSTOMS, CENTRAL EXCISE & SERVICE TAX, DEHRADUN, UTTRAKHAND [2023 (7) TMI 917 - CESTAT NEW DELHI] also observed that when the entire tax due has been deposited in the account of the Central Government though not entirely by the appellant as the service provider but also by the service recipients, it will not be possible to sustain the demand.
Since the appellant has paid the 50% of the tax due and remaining 50% has been paid by the service recipient with regard to the impugned taxable service, the duty liability stands discharged as 100% tax is deposited in the government exchequer. There is no loss to the Revenue for which they can claim that the duty has been short paid.
The issue has been decided on merits in favour of the appellant and hence it is not necessary to go into the question of invocation of the extended period of limitation or the levy of interest and penalty.
The impugned order, is unsustainable and deserves to be set aside. The appeal is, accordingly allowed.
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2024 (9) TMI 552
Leviability of VAT/CST - appellant company charges handling charges @0.6% to 1% from their dealers/customers, which is part of sales consideration - inclusion in the assessable value or not - invocation of extended period of limitation.
Inclusion in the assessable value or not - HELD THAT:- The present controversy has been decided by the Ahmedabad Bench of this Tribunal in the case of M/S GUJARAT BOROSIL LTD VERSUS COMMISSIONER OF C. EX. & S. TAX, SURAT-II [2017 (7) TMI 1034 - CESTAT AHMEDABAD], where the issue involved was whether the amount equal to 7% of the value of the goods, collected as insurance charges under the head “cost of transportation” from the dealers/buyers is includible in the assessable value and chargeable to duty. The Tribunal had categorically noted that the issue of charging duty on the said insurance charges by adding to the assessable value is settled by this Tribunal as similar proceedings initiated has been decided in M/S GUJARAT BOROSIL LTD VERSUS COMMISSIONER OF C. EX. & S. TAX, SURAT-II [2017 (7) TMI 1034 - CESTAT AHMEDABAD] - The Tribunal arrived at the conclusion that the amount equal to 7% of the value of the goods collected as insurance charges under the head “cost of transportation” from the dealers/buyers is not the excess amount of insurance charges collected and retained by the appellant but the amount has been collected as compensation for breakages during the course of transit by issuing credit notes. Thus, the payment made by the assessee to its customers for breakages and losses neither tantamounts to insurance nor cost of transportation and is includible in the assessable value.
Invocation of the extended period of limitation - HELD THAT:- The Tribunal observed that once the facts are within the knowledge of the Department, being always in dispute, hence the allegation that they have suppressed the facts from the knowledge of the Department is not acceptable in view of the principle of law laid down by the Apex Court in PUSHPAM PHARMACEUTICALS COMPANY VERSUS COLLECTOR OF C. EX., BOMBAY [1995 (3) TMI 100 - SUPREME COURT] and P & B PHARMACEUTICALS (P) LTD. VERSUS COLLECTOR OF CENTRAL EXCISE [2003 (2) TMI 68 - SUPREME COURT]. Similarly, the imposition of penalty was held to be un-warranted and un-justified as the issue related to the interpretation of Valuation Provisions and the duty was confirmed only for the normal period.
The question of invocation of extended period of limitation and imposition of penalty, etc. is also not sustainable.
The impugned order is set aside - appeal allowed.
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2024 (9) TMI 551
Non-payment of Service tax - Recovery of certain expenditures from their service recipient and the amount collected by the appellant from their service recipient have not been included under the taxable value for the purpose of payment of Service Tax - invocation of extended period of limitation - HELD THAT:- The appellant have recovered certain reimbursement expenditure which have been made by them for transport of goods on behalf of their principals namely M/s. Adani Willmar Limited.
It is also matter of record that the charges with regard to the C and F agent service received by the appellant have already been declared by them in their ST-3 returns and on the same due amount of the Service Tax had already been paid.
It was held by learned Commissioner (Appeals) while rejecting the appeal of the appellants that 'The appellant has received extra amount than the amount from their clients towards providing of various services and hence cannot be termed as pure agent as per Rule 5 of the Service Tax (Determination of Value) Rules, 2006 and hence all such value are required to be included in the value for the purpose of charging service Tax on the said services and hence is required to discharge the Service Tax liability accordingly'.
The logic adopted by the learned Commissioner (Appeal) in his above mentioned findings is legally not sustainable as Hon'ble Delhi High Court in the case of Intercontinental Consultants and Technocrats Pvt. Ltd. in its order dated 30.04.2012 [2012 (12) TMI 150 - DELHI HIGH COURT] have held that Rule 5 (1) of the Service Tax Valuation Rules is contrary to the provision of Section 67 of the Finance Act, 1994 and thus has been declared Rule 5(1) as ultra virus.
The transportation charges reimbursed to the appellant by their principals are on actual basis of the amount incurred by them on transportation of goods on behalf of their principals as pure agent and same are not includable in the taxable value of services for the appellant.
The impugned Order-In-Appeal is without any merit and is set aside - appeal allowed.
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2024 (9) TMI 465
Maintainability of petition - availability of equally efficacious remedy of appeal - Confirmation of service tax in addition to the penalty under Section 76 and 77 (2) of the Finance Act, 1994 - HELD THAT:- It is not required to interfere in the matter.
SLP dismissed.
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2024 (9) TMI 464
Refund of service tax paid - Direction to respondent to accept the refund application filed by the petitioner in Form R and grant the refund along with interest - relevant date and time limitation u/s 11B of the Central Excise Act, 1944 - Principles of unjust enrichment - HELD THAT:- A refund of service tax paid in excess if any, has to be made within a period of one year from the relevant date as specified under Section 11 B of the Central Excise Act, 1994 as it would apply to a refund of Central Excise duty under Section 11B of the Central Excise Act, 1944.
The decision of the Hon'ble Supreme Court in Union of India vs. ITC Ltd., [1993 (7) TMI 363 - SUPREME COURT] which was relied by Division Bench of this Court in the case of M/s.3E Infotech, 11 B/1, 2nd Floor, New Street, Parvathipuram, Nagercoil, Kanyakumari [2018 (7) TMI 276 - MADRAS HIGH COURT] is primarily an authority for “unjust enrichment” under Section 11B of the Central Excise Act, 1994.
A mandamus can be issued only when there is a corresponding statutory duty on the respondent to consider the petitioner’s refund claim beyond the period of limitation. Since, refund claims have to be filed beyond the period of limitation prescribed under the Scheme of the Finance Act, 1994, incorporating Section 11B of the Central Excise Act, 1994, no case is made out for issuance of a mandamus.
In this petition, refund claim has been filed long after expiry the period of limitation under Section 11-B of the Central Excise Act, 1944 as made applicable to Service Tax under Finance Act, 1994. Therefore, there is no merits in the present writ petition.
Petition dismissed.
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2024 (9) TMI 463
Monetary limit of appeals - Classification of services - business of in-flight catering services to various Airlines - Airport Service or not - period w.e.f. 1.7.2012 (negative list).
Whether these appeals fall within the monetary limit of appeals to be filed by the Department before Tribunal? - HELD THAT:- The amount involved in each appeal is less than Rs.50 lakhs. As per the litigation policy, these appeals fall within the monetary limits. The Ld. A.R has relied upon the decision in the case of CCE and Customs, CGST Jaipur-I Vs M/s.Century Metal Recycling Pvt. Ltd. [2024 (3) TMI 1245 - CESTAT NEW DELHI]. The said decision has been rendered in a customs appeal.
On perusal of the circular with regard to litigation policy, it is found that there are no intention on the part of Board to consider that the amount involved in all the appeals filed by the department has to be added together to ascertain the monetary limit.
The number of appeals to be filed by a litigant is not a choice but on the basis of the procedure rules. If each appeal filed by department though falls within monetary limit is to be considered on merits by clubbing the amount involved in all the appeals against a particular respondent, it would result in chaos and injustice as there would be no uniformity.
If the appeals which fall within the monetary limit and which are above the monetary limit are to be clubbed and taken together on merits only, it would be injustice to the respondent when compared to a single appeal filed by department on the same issue against another assessee in which amount involved is less than Rs.50 lakhs. To avoid such a situation, in our view, the litigation policy has to be given effect to - these four appeals fall within the monetary limit for appeals to be filed by Department before Tribunal.
Classification of service - main contention put forward by Revenue is that the services are provided inside the airport and therefore would fall within the definition of “Airport Services” as under Section 65 (105) (zzm) of the Finance Act, 1944 - HELD THAT:- There is nothing in the definition which says that the services provided in relation to airlines would also be covered in the definition. The definition says that the services provided by Airport Authority or a person authorized by it or any other person having charge of management or control of an airport are taxable under this category. In the present case, the respondent is not authorized by Airport. The original authority has correctly analyzed the definition and also the CBEC circular dt. 17.9.2004 to hold that respondent is not authorized for providing laundry service - the activity would not fall within the definition of “Airport Services” for the period prior to 1.7.2012.
There is no merit in the appeals filed by the Department - The impugned orders are sustained - All appeals are dismissed.
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2024 (9) TMI 462
Taxability - providing Corporate Guarantee without any consideration - service tax on profit/mark up.
Taxability of providing Corporate Guarantee without any consideration - HELD THAT:- The issue was dealt at length by this Tribunal in the case of Commissioner of CGST & Central Excise Vs Edelweiss Financial Services Ltd [2022 (2) TMI 1359 - CESTAT MUMBAI] wherein it was held that any activity must, for the purpose of taxability under Finance Act, 1994, not only, in relation to another, reveal a ‘provider’, but also the flow of ‘consideration’ for rendering of the service. In the absence of any of these two elements, taxability under section 66B of Finance Act, 1994 will not arise. It was held that there is no consideration insofar as ‘Corporate Guarantee’ issued by respondent on behalf of their subsidiary companies is concerned. This decision of the Tribunal was upheld by the Supreme Court [2023 (4) TMI 170 - SC ORDER] - demand set aside.
Taxability of service tax on profit/mark up - HELD THAT:- The issue on taxability of service tax on profit/mark up is no more res integra as the same has been decided in catena of decisions, the latest being the judgment in the case of M/s Tiger Logistics (India) Ltd., vs Commissioner of Service Tax-II, Delhi [2022 (2) TMI 455 - CESTAT NEW DELHI] where it was held that 'To earn this profit, he also takes the risk of being unable to sell. In the appellant‘s case, if the space on the ships which it bought cannot be sold to its customers fully, or due to market conditions, or is compelled to sell at lower than purchase price, the appellant incurs loss. In a contrary situation, it gains profits. This activity is a business in itself on account of the appellant and cannot be called a service at all. Neither can the profit earned from such business be termed consideration for service.' - demand set aside.
Appeal of assessee allowed.
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2024 (9) TMI 410
Maintainability of petition - availability of equally efficacious remedy of appeal - Confirmation of service tax in addition to the penalty under Section 76 and 77 (2) of the Finance Act, 1994 - HELD THAT:- It is not considered apposite to entertain the present petition - petition dismissed.
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2024 (9) TMI 409
Classification of service - referral service of the Appellant provided to Canadian Bank and foreign universities - Intermediary Service or not - export of services or not - extended period of limitation - interest - penalties.
Whether the services provided by the Appellant fall under the ambit of ‘Export of Services‘ and are exempted from service tax; or are classifiable under ‘Intermediary Service‘ as defined under Rule 2(f) of the Place of Provision of Service Rules, 2012 read with Rule 9 of the Place of Provision of Service Rules, 2012?
HELD THAT:- Hon‘ble Punjab & Haryana High Court in the case of GENPACT INDIA PVT. LTD. VERSUS UNION OF INDIA AND OTHERS [2022 (11) TMI 743 - PUNJAB AND HARYANA HIGH COURT] has held that the following three conditions must be satisfied primarily for a person to qualify as an Intermediary: i). the relationship between the parties must be that of a principal-agency relationship. ii). the person must be involved in arrangement or facilitation of provisions of the service provided to the principal by a 3rd party. iii). the person must not actually perform the main service intended to be received by the service recipient itself. Scope of an "intermediary" is to mediate between two parties i.e. the principal service provider (the 3rd party) and the beneficiary who receives the main service and expressly excludes any person who provides such main service "on his own account.
It is found that in the Appellant‘s own case for the same impugned services for the earlier period in M/S SUNRISE IMMIGRATION CONSULTANTS PRIVATE LIMITED VERSUS CCE & ST, CHANDIGARH [2018 (5) TMI 1417 - CESTAT CHANDIGARH] this Tribunal has allowed the appeal of the Appellant and has held that the services rendered/provided by the Appellant do not fall in the definition of ‘Intermediary Services‘. The Tribunal has also held that the services rendered by the Appellant satisfy the conditions prescribed for the ‘Export of Services‘ and therefore, the Appellant are not liable to pay service tax on the services rendered by them.
Since the issue involved in the present case has already been decided by this Tribunal in the above case, in favour of the Appellant holding that the services provided by the Appellant amount to ‘Export of Services‘ and not ‘Intermediary Services‘. The said decision of the Tribunal was appealed by the Revenue before the Hon‘ble High Court but later on the appeal was withdrawn on monetary limit under CBIC instructions dated 22.08.2019.
Invocation of extended period of limitation - HELD THAT:- The activities carried on by the Appellant were in the knowledge of the department because for the previous period also, the extended period of limitation was invoked and the Tribunal in M/S SUNRISE IMMIGRATION CONSULTANTS PRIVATE LIMITED VERSUS CCE & ST, CHANDIGARH [2018 (5) TMI 1417 - CESTAT CHANDIGARH], has held that the demand is barred by limitation; therefore, invocation of extended period is bad in law in the present case also.
Interest and penalties - HELD THAT:- The question of interest and penalties 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 408
Levy of service tax - payment of Rs.59,12,145/- reported as income from sale of service in the ITR of the appellant - burden of proof on Department - presumption as to document as available under Section 36A of Central Excise Act, 1944 - HELD THAT:- It is abundantly clear that the demand in question has been confirmed purely based on third party document/information gathered from the Income Tax Department for Financial Year 2016-17.
Hon’ble Supreme Court in the case of JAIPRAKASH INDUSTRIES LTD. VERSUS COMMISSIONER OF C. EX., CHANDIGARH [2002 (11) TMI 92 - SUPREME COURT] has held that the demand based on Income Tax Returns and Form 26AS and/or Balance Sheet is not sustainable without proper enquiry and analysis.
Further it is observed that it is the settled principle of Revenue jurisprudence that the burden to prove the allegations against the assessee rests on the department - support drawn from the decision in the case titled as COMMISSIONER OF C. EX., BANGALORE VERSUS BRINDAVAN BEVERAGES (P) LTD. [2007 (6) TMI 4 - SUPREME COURT], wherein it was additionally held that if the allegations in show cause notice are not specific, the same is sufficient to hold that the notice was not given proper opportunity to meet the allegation the said show cause notice. The said burden stands absolutely un-discharged by the department.
It is coming from the show cause notice itself that the appellant is registered with the service tax department having registration no. AEBPJ1665HSD001. Despite this there is no mention of the nature of services for which the appellant has got itself registered even in the show cause notice. Also it is apparent from the show cause notice that no provision under which the payment would have been made before Income Tax Authorities has been observed or cited by the department - the department has failed to act diligently ant to discharge its burden of proving the appellant’s alleged failure. No proper investigation has at all been conducted by the department.
The document which has been relied upon by the department and has been used against the assessee was neither produced by the assessee nor has been seized from his premises or control. This observation is sufficient to hold that presumption as to document as available under Section 36A of Central Excise Act, 1944 is not applicable to the DGS and DM’s letter dated 22.05.2019 based whereupon the impugned show cause notice was issued and the demand proposed therein has been confirmed on the same basis. The document is not at all admissible into evidence. Hence the very basis of department’s case vanishes.
The order under challenge is set aside - appeal allowed.
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2024 (9) TMI 407
Levy of service tax - cheque dishonour charges - late delivery Charges - amount recovered by the Appellant is a consideration or not - HELD THAT:- This issue is no more res-integra. The Learned Counsel reliance on the Tribunal’s decision in M/s South Eastern Coal Fields Ltd [2020 (12) TMI 912 - CESTAT NEW DELHI] is justified - It was held in the case that 'The recovery of liquidated damages/penalty from other party cannot be said to be towards any service per se, since neither the appellant is carrying on any activity to receive compensation nor can there be any intention of the other party to breach or violate the contract and suffer a loss. The purpose of imposing compensation or penalty is to ensure that the defaulting act is not undertaken or repeated and the same cannot be said to be towards toleration of the defaulting party. The expectation of the appellant is that the other party complies with the terms of the contract and a penalty is imposed only if there is non-compliance.'
The Tribunal has consistently held that penalty/late delivery charges cannot be subjected to Service Tax Under Section 66E of the Finance Act 1994. Consequently, the impugned order dated 08.01.2019 is set aside.
Appeal allowed.
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2024 (9) TMI 406
Levy of service tax - works contract services of C R Building, foundation, cable trench, compound wall, etc to Gujarat Energy Transmission Corporation Ltd (GETCO) in relation to transmission of powers - SCN barred by time limitation or not - HELD THAT:- There is no dispute that the works contract service was provided by the appellant to M/s. GETCO and this service is exclusively for overall activity of recipient in relation to transmission of electricity. Such service has been made exempted retrospectively as well as prospectively vide Notification No. 45/2010 – ST dated 20.07.2010 and Notification No. 11/2010-ST dated 27.02.2010.
The service relating to transmission of electricity is exempted but the term relating to transmission is very wide, accordingly, not only the actual service of transmission but all the infrastructure made for the purpose of ultimate objective of transmission of electricity covered under the terms “ relating to transmission” of electricity. Therefore, in the present case the works contract service for the construction of building and other work is in relation to transmission of electricity, therefore, the same is exempted under the aforesaid notifications and not liable for service tax. This issue has been considered by the Tribunal in various judgments. In the case of Kedar Construction [2014 (11) TMI 336 - CESTAT MUMBAI] this tribunal held that 'the confirmation of service tax demand in respect of the construction, maintenance or repair activities undertaken by the appellant so far as it relates to the transmission/distribution of electricity cannot be sustained in law.'
Thus, it is clear that the appellant’s service of works contract is covered by the exemption Notification No. 45/2010 – ST dated 20.07.2010 and Notification No. 11/2010-ST dated 27.02.2010.
The impugned order is set aside - appeal allowed.
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2024 (9) TMI 319
CENVAT Credit - input services - mobilization advance availed and debited w.e.f. July, 2012 of Rs. 91,01,452/-, paid during the year 2010-11 - interest - penalty - extended period of limitation - HELD THAT:- From the statutory provisions, it is evident that the scope of definition of “input service” as enumerated under Rule 2(l) of Cenvat Credit Rules, 2004, does not cover the services specified under Commercial or Industrial Construction services, construction of Complex services and Works Contract services so far as the same are used for construction of a building or a civil structure or a part thereof for the period upto 30.06.2012. Further, it is noted that from 01.07.2012 onwards, the scope of input service definition excludes the service portion in the execution of a works contract and construction services, including service listed under clause (b) of section 66E of the Finance Act in so far as they are used for construction or execution of works contract of a building or a civil structure or a part thereof.
In view of the statutory provisions, it is opined that the Commissioner was correct in holding that any service tax paid by the service providers on such mobilization advance received towards rendition of such construction services, would not qualify to be eligible as Cenvat credit, as the services so received are not eligible ‘input services’ in terms of the provisions of Rule 2(l) of Cenvat Credit Rules, 2004.
The question of taxability on mobilization advances has been well settled and in the case of M/S GJF CONSTRUCTION CO. LTD. VERSUS COMMISSIONER OF CENTRAL EXCISE & SERVICE TAX, HYDERABAD [2018 (8) TMI 323 - CESTAT HYDERABAD] and in the case of THERMAX INSTRUMENTATION LTD. VERSUS COMMISSIONER OF CENTRAL EXCISE, PUNE-I [2015 (12) TMI 1222 - CESTAT MUMBAI], the Tribunal held that mobilization advance received by the assessee is not chargeable to service tax, if it is in the nature of an advance. In view of the same, the appellant was not entitled to take credit of service tax paid on such mobilisation advances. Consequently, the demand confirmed in the impugned order upheld.
Confirmation of interest under Rule 14 of the Cenvat Credit Rules, 2004 - HELD THAT:- There was no service tax liability on such mobilisation advances. Therefore, the credit taken on such tax paid was not admissible - The word ‘taken’ as used in Rule 14 is considered on a different footing from the word ‘availed’. In view of the submissions made that the appellant had balance of Cenvat Credit higher than Rs. 91,01,452/-, it is held that no interest is liable to be paid.
Extended period of limitation - Penalty u/s 77 and 78 of the Finance Act, 1994 - HELD THAT:- The appellant was registered with the Revenue department and was paying Service Tax on various outputs services. The appellant was filing returns regularly. It is also on record that the appellant had cooperated with the Department and had submitted all information/documents were furnished during audit - the Courts have consistently held that in such a situation, the facts are deemed to be in the knowledge of the Department, and the intent to evade has to be positive act to be established by the department - there is no justification for invoking the extended period to impose penalty under Section 78. There is also no justification for imposing penalty under section 77 of the Finance Act.
Appeal allowed in part.
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2024 (9) TMI 318
Levy of service tax - re-imbursement of port charges during provisioning of CHA service - commission under Business Auxiliary Service.
CHA Service - amount received as forklift expenses and various other charges is reimbursable - HELD THAT:- It is settled that other than service charge of service of CHA any reimbursable expenses incurred on behalf of the clients is not liable to service tax - As held by Hon’ble Supreme Court in the case of IUNION OF INDIA AND ANR. VERSUS M/S. INTERCONTINENTAL CONSULTANTS AND TECHNOCRATS PVT. LTD. [2018 (3) TMI 357 - SUPREME COURT] and various other judgments relied upon by the appellant. Hence the demand on such reimbursable expenses is set-aside.
Demand of service tax on Business Auxiliary Service (commission) - HELD THAT:- The learned consultant is agreed upon that demand of Rs. 31,859/- for the period 01.10.2003 to 31.03.2004 is not sustainable as the same is covered under general exemption N/N. 13/2003-ST dated 20.06.2003. Therefore, this demand of Rs. 31,859/- is set-aside and the remaining demand on Commission is upheld.
The impugned order stand modified to the above extent - Appeal allowed in part.
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2024 (9) TMI 317
Invocation of time limitation for raising demand - Levy of penalty - Exemption from service tax - bundled services or not - game of cricket - Dropping of the demands by the ld. adjudicating authority - demand raised under the category of ‘business auxiliary service’ - Dropping of the demand under the category of ‘event management service - Dropping of demand under the category of ‘mandap keeper service’ - Dropping of demand under ‘renting of immovable property service'.
Invocation of time limitation for raising demand - Levy of penalty - HELD THAT:- The demand has been raised in the notice on the basis of Annual Report for the year 2008-09 to 2013-14 which is published every year and the Ledger A/c maintained by them. When the demand is raised on the basis of the books of accounts maintained by the appellant, extended period cannot be invoked.
This view has been held in the case of COMMISSIONER OF CENTRAL EXCISE, BOLPUR, COMMISSIONERATE VERSUS M/S. HINDUSTAN CABLES LIMITED. [2022 (6) TMI 709 - CALCUTTA HIGH COURT] wherein the Hon'ble Calcutta High Court has held that when Show Cause Notice issued is on the basis of book of accounts maintained by the assessee and not discovery of new facts by Department, extended period of limitation cannot be invoked.
The demands confirmed in the impugned order for the extended period of limitation is not sustainable. No penalty is imposable as suppression of fact with intention to evade the tax is not established in this case.
Exemption from service tax - bundled services or not - game of cricket - HELD THAT:- All the services rendered by the appellant are naturally bundled together with the game of cricket. In the present case, it is observed that promoting the game of cricket is the primary objective of the cricket association/JSCA and all the services rendered are in association with promoting the game of cricket. When matches are not played, all the services become irrelevant and JSCA earns money only when these services are provided during the course of cricket matches. Accordingly, JSCA has rendered ‘bundled services’ in connection with promoting the game of cricket.
Since services rendered in connection with promotion of sporting events is exempted from the levy of Service Tax prior to 30.06.2012, no service tax is payable by the JSCA, being a charitable institution engaged in the activity of promoting the game of cricket. For the period after 01.07.2012, vide Mega Exemption Notification No 25/2012-S.T. dated 20.06.2012, exempts all the services rendered by JSCA in connection with sports from the levy of service tax. Accordingly, JSCA are not liable to pay Service Tax for the services rendered by them in connection with promotion of sports.
Dropping of the demands by the ld. adjudicating authority - demand raised under the category of ‘business auxiliary service’ - HELD THAT:- The amount received are not taxable under the category of "Business Auxiliary Services" as the said subsidies are not received for providing any service for the promotion, marketing or sale of any product or service for the "client". The said "subsidies" were merely in the nature of grants-in-aid by the BCCI for promotion of the game of cricket in the State of Jharkhand. The services rendered in connection with promotion of sports is not liable to service tax prior to 30.06.2012. For the period under the Negative List regime also, in terms of Clause 10(b) of the Mega Exemption Notification No 25/2012-S.T. dated 20.06.2012, w.e.f. 01.07.2012 any service provided by a recognized sports body to another is exempted from levy of service tax - the ld. adjudicating authority has rightly dropped the demand raised in the Notice under this category.
Dropping of the demand under the category of ‘event management service - HELD THAT:- It is observed that the subsidies received from BCCI are in the nature of grants in aid for providing any service in relation to management of any event as an “event manager”. Accordingly, the ld. adjudicating authority has rightly dropped the demand raised under the category of event management service.
Dropping of demand under the category of ‘mandap keeper service’ - HELD THAT:- JSCA had leased corporate boxes, hospitality boxes, etc., to corporate houses for viewing international matches for a specified period (not for all matches). This amount collected is in the nature of ‘entry fee’ booked in advance to privileged buyers and hence, the said activity could not be treated as a ‘service’ under the category of ‘mandap keeper service’. JSCA also submits that there is no exclusive letting out of the said corporate boxes, hospitality lounges, etc.; in the instant case, JSCA is neither a ‘mandap keeper’ nor are the corporate boxes ‘mandaps’. Accordingly, the ld. adjudicating authority has rightly dropped the demand under this category.
Dropping of demand under ‘renting of immovable property service’ - HELD THAT:- The service rendered in this regard by JSCA is not liable to service tax prior to 30.06.2012. W.e.f. 01.07.2012, under the category of ‘declared services’, the ground rent received for playing cricket, which is not in furtherance of business, is not taxable. In respect of the other services wherein demands were dropped by the ld. adjudicating authority, there are no infirmity in the dropping of the demand by the ld. adjudicating authority.
All the said demands have been rightly dropped by the ld. adjudicating authority and thus, upheld - the demands confirmed by the ld. adjudicating authority in the impugned order set aside - Since the demand itself is set aside, the question of demanding interest and imposing penalties does not arise.
Appeal of assessee allowed.
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2024 (9) TMI 316
Refund of CENVAT Credit - part rejection on account that the address mentioned in the invoices were not the registered address of the appellants - whether the amount of refund claim of CENVAT credit, rejected in the impugned order dated 08.03.2019 is eligible to be considered as refundable in terms of Rule 5 of the CENVAT Credit Rules, 2004, or not?
Denial of CENVAT Credit on the ground that such credit was not availed during the disputed quarter, but in subsequent period - HELD THAT:- It is found that the provisions of Rule 9(11) of the CCR, 2004, in fact provide for submission of revised return to correct a mistake or omission within a prescribed period. It no where deals with taking of CENVAT credit, which is governed under the Rule 3 of the CCR, 2004. Further, it is a settled position of law that those grounds which did not find mention in the show cause notice as well, then the department cannot travel beyond the show cause notice.
In the case of ASSISTANT COMMISSIONER, COMMERCIAL TAX DEPARTMENT, WORKS CONTRACT & LEASING, KOTA VERSUS M/S SHUKLA & BROTHERS [2010 (4) TMI 139 - SUPREME COURT], the Hon’ble Supreme Court have held that the concept of reasoned judgement has become an indispensable part of basic rule of law and it is mandatory requirement for procedural law and that the reasoning for a decision should be recorded therein.'
Denial of CENVAT Credit - denial on the ground that the address mentioned in the invoices were not the registered address of the appellants - HELD THAT:- The Co-ordinate Bench of the Tribunal in the case of GE INDIA EXPORTS (P) LTD. VERSUS COMMISSIONER OF C. EX. & S.T., HYDERABAD-II [2017 (1) TMI 613 - CESTAT HYDERABAD] have held that CENVAT credit cannot be denied on the ground of invoices having been issued on unregistered premises of the appellants. In the present case, the CENVAT credit has been taken by the same assessee-appellant and therefore the ground of difference in the address/registered address appearing in the invoices, on which the impugned order had rejected the CENVAT credit is not proper and justified.
The impugned order is modified to the extent of allowing the appeal filed by the appellants in respect of refund of Rs.7,83,480/-being found as eligible CENVAT credit amount to be sanctioned to the appellants.
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2024 (9) TMI 245
Dismissal of appeal on the ground of monetary limit - Issues involved: Classification of services - Site formation and Clearance, Excavation and Earthmoving and Demolition Service or Mining service - service of removal of overburden in relation to mining of lignite - HELD THAT:- In view of the latest Circular dated 06.08.2024, issued by the Central Board of Direct Taxes, in exercise of its power under Section 35R of the Central Excise Act, 1944, whereby the monetary limit of Rs.5 crore has been fixed for not filing the appeal in the Supreme Court, it is not inclined to entertain these appeals, which are, accordingly, dismissed in terms of the above-cited Circular.
The pending interlocutory applications also stand disposed of.
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2024 (9) TMI 244
Recovery of arrears of tax, interest and penalty - specific case of the petitioner is that the petitioner opted to settle the dispute under the Sabka Vishwas (Legacy Dispute Resolution) Scheme, 2019, and filed proper declaration in Form No.SVLDRS-1 as early as 31.12.2019 - HELD THAT:- The attempt of the parliament to recover the arrears of tax under the aforesaid Scheme in Finance Act No.2/2019 vide Sabka Vishwas (Legacy Dispute Resolution) Scheme, 2019 was partly frustrated and derailed due to outbreak of Covid-19 pandemic. Pursuant to which, lockdown was imposed with effect from 15.03.2020 which continued up to 28.02.2022.
The Hon'ble Supreme Court has passed several orders whereby, limitations were extended wherever deadlines had expired. In fact, the Central Government had also issued ordinance called the Taxation and Other Laws (Relaxation and Amendment of Certain Provisions) Ordinance, 2020 which was later replaced by the Taxation and Other Laws (Relaxation and Amendment of Certain Provisions) Act, 2020 and the limitation for passing the order would have stood extended from time to time that is up to September 2022 - In the case on hand, the Show Cause Notice was issued on 02.12.2020 when the Country was still under intermittent lockdown. The demand was confirmed vide impugned Order-in-Original No.18/2021-ST Adj (DC) dated 22.06.2021 passed by the second respondent when also the Country was still under intermittent lockdown.
This writ petition is allowed by quashing the impugned order subject to the condition that the petitioner deposits a sum of Rs. 38,57,329/- to the credit of the Central Government, within a period of thirty days from the date of receipt of a copy of this order together with interest at 15% from 01.07.2020 till such date. Subject to the petitioner complying with the other requirements, the impugned order shall stands quashed.
Petition allowed.
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2024 (9) TMI 243
Invocation of the extended period of limitation - classification of services - health care services or Business Auxiliary Service - service charges taken by the appellant from the medical shop - HELD THAT:- In the case of M/S SIR GANGA RAM HOSPITAL VERSUS COMMISSIONER OF SERVICE TAX, NEW DELHI [2020 (11) TMI 536 - CESTAT NEW DELHI], the Revenue had alleged that the “collection charges/facilitation fee” retained by the hospital are liable to service tax under the category of “business support services”. The claim of the Revenue was that the hospital had provided infrastructural services to various doctors and the amount retained by the hospital out of the total charges collected from the patients should be considered as an amount for providing infrastructure like rooms and certain other secretarial facilities to the doctors to attend to their work in the appellant’s hospitals was rejected by the Tribunal observing that the appellant’s hospitals are engaged in providing health care services, which can be done by appointing the required professionals directly as employees and same also can be done by having contractual arrangements.
There are no necessity to decide the issue of invocation of extended period of limitation or imposition of interest and penalty on the appellant - the demand proceedings against the Appellant hospital are hereby dropped - appeal allowed.
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