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Service Tax - Case Laws
Showing 41 to 60 of 29360 Records
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2024 (5) TMI 199 - CESTAT BANGALORE
Levy of service tax - Construction of Residential Complex Services - construction of residential complex for Army personnel - Ministry of Finance letter F. No. 137/26/2006-CX.4 dated 05.07.2006 - period 16.06.2005 to 31.05.2007 - HELD THAT:- It is found that from period prior to 01.06.2007 service tax is not leviable and in view of the judgment of the Hon’ble Supreme Court in the matter of COMMISSIONER, CENTRAL EXCISE & CUSTOMS VERSUS M/S LARSEN & TOUBRO LTD. AND OTHERS [2015 (8) TMI 749 - SUPREME COURT], and in the case of Total Environment Building Systems Pvt., Ltd., [2022 (8) TMI 168 - SUPREME COURT], wherein it is held that 'Works contract were not chargeable to service tax prior to 1.6.2007'.
As regards the period from 01.06.2007 to 31.05.2010, it is covered by the decisions of Tribunal in the case of M/S. SUGANDHA CONSTRUCTION PVT. LTD. VERSUS CCE, BHOPAL [2017 (12) TMI 446 - CESTAT NEW DELHI] where it was held that 'Having found that the Service Tax was not at all leviable on service element of a works contract, Parliament felt the need for the amendment and was so incorporated by the Finance Act, 2007.'.
The impugned order is set aside - appeal allowed.
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2024 (5) TMI 198 - CESTAT KOLKATA
Classification of services - cargo handing service or business auxiliary service - extended period of limitation - suppression of facts or not - HELD THAT:- It is found that initially, a SCN was issued to the appellant for the very same activity, to re-classify their service under the category of “cargo handling service”, which was dropped by the Hon’ble High Court. Later on, the Revenue sought to classify the said activity under the category of “business auxiliary service” by way of the impugned Show Cause Notice by invoking the extended period of limitation. Since the Revenue itself is in confusion as to whether the activity undertaken by the appellant falls under cargo handling service or business auxiliary service, in these circumstances, the extended period of limitation is not invokable and the charge of suppression cannot be alleged against the appellant.
The whole of the demand against the appellant is barred by limitation. Accordingly, the impugned proceedings are set aside - appeal allowed.
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2024 (5) TMI 197 - CESTAT CHENNAI
Exemption from Service Tax - providing gravel topping and laying laterite along the build road Biennial Maintenance of roads inside mines - benefit of N/N. 24/2009 dated 27.07.2009 - HELD THAT:- It is an undisputed fact that the appellant had rendered inter alia the services of road construction in private commercial premises of Neyveli Lignite Corporation, and thus claimed the benefit of Notification No.24 ibid. The Notification No.24/2009-ST dated 27.7.2009 provides for exemption of service tax on management, maintenance or repair of roads and the new Section 97 introduced vide Finance Act, 2012 gave retrospective amendment to this notification w.e.f/ 16.6.2005. The above said Notification No.24/2009-ST or amendment Notification No.54/2010-ST dated 21.12.2010 and new Section 97 of Finance Act, 2012 does not stated in any place that “the exemption from payment of service tax is only with respect of public utility roads”.
The orders relied upon in the case of RAJENDRA SINGH BHAMBOO. VERSUS C.E. AND S.T. JAIPUR-I [2018 (4) TMI 772 - CESTAT NEW DELHI] and NMC INDUSTRIES PVT LTD VERSUS COMMISSIONER OF SERVICE TAX – II [2020 (3) TMI 319 - CESTAT MUMBAI] are apt where it was held that 'Since there is no ambiguity in plain reading of the definition and in view of the admitted fact that the appellant had constructed roads for different commercial entities/organization, the benefit of the exclusion provided in the definition clause should be available to it.'
The demand raised and confirmed against the taxpayer in the case on hand cannot sustain - the impugned order is set aside - appeal allowed.
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2024 (5) TMI 196 - CESTAT AHMEDABAD
Invocation of extended period of limitation - activities of the appellant have been entered in their books of accounts and they have been filing their ST-3 returns regularly - Failure to discharge the service tax liability correctly - income earned for the services such as customer fee income, share application fee income, share application fee income for society, tender form fee income, transfer fee income, visit fee income etc.
HELD THAT:- It can be seen that the provisions of section 73(1) provides that if the service tax has not been levied or paid or has been short paid or short levied for the reason of fraud, collusion or willful mis-statement or suppression of facts or contravention of any of the provision of this chapter or the rules with an intend to evade payment of service tax the show cause can be issued within a period of five years - Since, the allegations of fraud, collusion or willful mis-statement or suppression etc. has not been proved by the department. It is found that invoking the extended time proviso under section 73(1) of the Finance Act, 1994 is legally not sustainable. The demand of service tax has been made from April 2007 to March 2012, while the show cause notice has been issued on 1st December, 2015 and therefore it is clear that entire period of the demand is barred by period of limitation and period from April 2007 to January 2010 is even beyond the intended time limit of five years. At the same time the department has not been able to adduce any evidence which can support the extended time proviso for demanding service tax.
This Tribunal in case of INTERCONTINENTAL POLYMER PVT LTD VERSUS C.C.E. & S.T. -DAMAN [2023 (6) TMI 453 - CESTAT AHMEDABAD] held that 'in the peculiar facts as noted above there is no suppression of fact or mala-fide intention on part of the appellant, therefore, the invocation of extended period is illegal and incorrect.'.
The demand for the period April 2007 to March 2012 raised by the show cause notice dated December 1, 2015 is clearly barred by period of limitation and therefore without going into merit of the matter, it is held that the impugned show cause notice is barred by period of limitation - the impugned order is set aside - appeal allowed.
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2024 (5) TMI 136 - CESTAT ALLAHABAD
Levy of service tax - Business Auxiliary Services - incentive received from M/s Pepsi to allegedly promote the sales of goods of Pepsi brand - HELD THAT:- The issue in the present appeal is no more res integra and this Bench of the Tribunal vide Final Order No.70040 of 2024 dated 30.01.2024 has allowed the appeal of the Appellant holding that 'From the activities undertaken by the appellant, it is evident that they have not acted towards marketing and promotion or sale of goods produced by their client. At best it can be said that they have participated in promotion of the brand name of 'Coca Cola', 'Pepsi' etc. Such activities cannot be brought under 'Promotion or Marketing or Sale of Goods Produced or Service Provided by the Client', appearing under 'Business Auxiliary Service'.'
The impugned order is set aside to the extent of confirmation of demand and penalties by the learned Commissioner (Appeals). The appeal filed by the Appellant is allowed.
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2024 (5) TMI 135 - CESTAT AHMEDABAD
Classification of services - Manpower Recruitment or Supply Agency service or not - executing works assigned as per the works order - appellant are job workers as well as principal manufactures.
SCN issued to M/s. Senor Metals Pvt Ltd and M/s. Rajhansh Metals, Pertains to period effective from 01.07.2012 under Serial No. 8 of the Notification No. 13/2012-ST dates 20.06.2012 which provides that in case of supply of the Manpower or supply Agency service, 25% of the Service Tax is payable by the person supplying the service where as 75% of the Service Tax was payable by the person receiving the service.
HELD THAT:- The issue is no longer res integra as this Tribunal in a case of SHRI DAYANAND MISHRA VERSUS COMMISSIONER OF CENTRAL EXCISE & ST, RAJKOT [2024 (4) TMI 233 - CESTAT AHMEDABAD] has already decided matter where it was held that 'the matter is no longer res-integra as this Tribunal in a similar case has held that the agreement is for execution of a particular work and not for providing any manpower. As per work contract the payment is paid for the work performed on the basis of per Kg of goods manufactured and therefore such an activity cannot be classifiable under the service category of Manpower Recruitment or Supply Agency Service. '
Thus, the service provided by the appellants does not fall under the category of Manpower Recruitment or Supply Agency service and therefore, the impugned Orders-In-Appeal are legally not sustainable and therefore set aside - appeal allowed.
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2024 (5) TMI 134 - CESTAT AHMEDABAD
Classification of service - Manpower Recruitment and Supply Agency Service or not - services received from the contractor M/s. A.M Enterprise who was engaged in undertaking various odd jobs including packing of loose Cement at the appellant plant - payment made to contractor - HELD THAT:- Reliance placed upon CBEC Circular No. 190/9/2015-ST dated 15.12.2015 and various case law most specifically on 2024 (4) TIM 233-CESTAT-AHMEDABAD in the matter of SHRI DAYANAND MISHRA VERSUS COMMISSIONER OF CENTRAL EXCISE & ST, RAJKOT [2024 (4) TMI 233 - CESTAT AHMEDABAD], which in turn relied upon the decision of ROOPSINH JODHSINH CHAUHAN AND NAVALSINH JADEJA VERSUS COMMISSIONER OF CENTRAL EXCISE & ST, RAJKOT [2023 (11) TMI 102 - CESTAT AHMEDABAD] which has held that when the contract between the service provider is admittedly a contract of manufacturing or any process thereof, then engagement of labour will not make it as manpower supply.
The matter is no more res integra and the impugned service cannot be held as Manpower Recruitment and Supply Agency Service simply because of the basis of making payment to the contractor.
Appeal allowed.
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2024 (5) TMI 133 - CESTAT CHENNAI
Levy of service tax - Construction of Residential Complex Service and Commercial / Industrial Construction Service - providing construction service of composite nature - HELD THAT:- The documents produced sufficiently established that the contracts are composite in nature. The decision laid down by the Tribunal in the case of REAL VALUE PROMOTERS PVT. LTD., CEEBROS PROPERTY DEVELOPMENT, PRIME DEVELOPERS VERSUS COMMISSIONER OF GST & CENTRAL EXCISE, CHENNAI [2018 (9) TMI 1149 - CESTAT CHENNAI] would be squarely applicable. The said decision has been followed by the Tribunal in the case of M/S. JAIN HOUSING & CONSTRUCTION LIMITED VERSUS COMMISSIONER OF SERVICE TAX, CHENNAI [2023 (2) TMI 1044 - CESTAT CHENNAI] and was upheld by the Hon’ble Apex Court in THE COMMISSIONER OF SERVICE TAX VERSUS M/S. JAIN HOUSING AND CONSTRUCTION LTD. [2023 (9) TMI 816 - SC ORDER], by dismissing the Department appeal.
The demand cannot sustain and requires to be set aside - appeal allowed.
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2024 (5) TMI 132 - CESTAT CHENNAI
Levy of service tax - subscription fees and entrance fees collected by the appellant from existing members and new members - Supply of Tangible Goods Services - appellant has received freight charges from M/s. BPCL for supply of Lorries for transport of petrol - Business Auxiliary Service - discount and commission accounted by the appellant - receiving reimbursement of Bank charges as well as commission of Demand Drafts from M/s. BPCL in respect of transactions with M/s. BPCL - amount received by the appellant for sale of fleet cards - Extended period of limitation - suppression of facts or not - Penalty imposed under Renting of Immovable Property Services and Mandap Keeper Services - service tax paid already.
Levy of service tax - subscription fees and entrance fees collected by the appellant from existing members and new members - HELD THAT:- The said issue as to whether subscription fee collected from members can be subject to levy of service tax prior to 01.07.2012 has been settled in the case of STATE OF WEST BENGAL & ORS. VERSUS CALCUTTA CLUB LIMITED AND CHIEF COMMISSIONER OF CENTRAL EXCISE AND SERVICE & ORS. VERSUS M/S. RANCHI CLUB LTD. [2019 (10) TMI 160 - SUPREME COURT]. Following the same, it is opined that the demand of service tax under this category cannot sustain and requires to be set aside.
Levy of service tax - Supply of Tangible Goods Services - appellant has received freight charges from M/s. BPCL for supply of Lorries for transport of petrol - HELD THAT:- As per the Show Cause Notice, it is seen that the appellant has collected only freight charges. The appellant has not collected any amount as hire charges in addition to the freight charges. Further, the service tax on the freight charges has been paid by M/s. BPCL who is the service recipient - The Tribunal in the case of M/S. ERODE LORRY OWNERS ASSOCIATION VERSUS THE COMMISSIONER OF G.S.T. & CENTRAL EXCISE, SALEM COMMISSIONERATE [2019 (3) TMI 43 - CESTAT CHENNAI] had considered the issue on very similar set of facts and held that the demand of service tax under Supply of Tangible Goods Services cannot sustain. Following the said decision, the demand cannot sustain and requires to be set aside.
Levy of service tax - Business Auxiliary Service - discount and commission accounted by the appellant - HELD THAT:- The amount received is only the difference in the price rate of fuel sold by the appellant. It is found that the demand cannot sustain and requires to be set aside.
Levy of service tax - receiving reimbursement of Bank charges as well as commission of Demand Drafts from M/s. BPCL in respect of transactions with M/s. BPCL - HELD THAT:- These are nothing but reimbursable expenses and cannot be subject to levy of service tax prior to 2015. The issue stands decided by the decision in the case of UNION OF INDIA AND ANR. VERSUS M/S. INTERCONTINENTAL CONSULTANTS AND TECHNOCRATS PVT. LTD. [2018 (3) TMI 357 - SUPREME COURT], where it was held that 'only with effect from May 14, 2015, by virtue of provisions of Section 67 itself, such reimbursable expenditure or cost would also form part of valuation of taxable services for charging service tax' - demand set aside.
Levy of service tax - amount received by the appellant for sale of fleet cards - HELD THAT:- The appellant has sold the fleet cards to customers on behalf of M/s. BPCL. However, they have not received any mark-up or profit on the fleet cards. The fleet carts were sold on the amount as reimbursed by M/s. BPCL. The appellant has not been given any consideration for sale of fleet cards, it is found that the actual amount received from M/s. BPCL for sale of fleet cards cannot be subject to levy of service tax. The demand under this head is set aside.
Extended period of limitation - suppression of facts or not - HELD THAT:- The Department has not established any positive act of suppression on the part of the appellant. The entire figures have been obtained from the accounts maintained by the appellant. This apart, most of the amounts do not fall under the category of taxable service. For this reason, the invocation of extended period cannot sustain.
Penalty imposed under Renting of Immovable Property Services and Mandap Keeper Services - service tax paid already - HELD THAT:- The appellant has already discharged service tax on these amounts. They are also registered for these services. For these reasons, the penalty imposed under Renting of Immovable Property Services and Mandap Keeper Services required to be set aside - However, the demand of service tax or the interest thereon on Renting of Immovable Property as well as Mandap Keeper Services is not interfered and only the penalty in this regard is set aside.
The impugned order is modified to the extent of upholding the demand and interest in regard to Renting of Immovable Property Services and Mandap Keeper Services and setting aside the demand, interest and penalty in respect of all other services - Appeal allowed in part.
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2024 (5) TMI 131 - CESTAT CHENNAI
Demand of interest on irregular CENVAT Credit merely taken in the books but have not been utilized - entire CENVAT credit of capital goods was availed instead of 50% as stipulated under Rule 4(2)(a) of CCR, 2004 - availment of credit on Customs Cess - availment of CENVAT Credit by the appellant on the basis of various invoices / documents is in order or not in terms of Rule 9 of CENVAT Credit Rules, 2004 - invocation of extended period of limitation - penalty.
Demand of interest on ireegular availed credit - 100% availment of CENVAT Credit on capital goods in the first year itself and the availment of credit on Customs Cess - HELD THAT:- The appellant though has taken the credit in their books has not utilized the credit taken towards payment of any duty / tax. Whether interest is demandable or not on irregular CENVAT Credit availed but not utilized, the issue is no more res integra as it has been held by various higher judicial fora that when CENVAT Credit was merely taken in the books but not utilized would not involve any payment of interest or penalty.
The issue of unutilized CENVAT Credit was a subject matter before the Hon’ble Supreme Court in the case of UOI AND ORS. VERSUS IND-SWIFT LABORATORIES LTD. [2011 (2) TMI 6 - SUPREME COURT] and the decision was considered by the Hon’ble High Courts and co--ordinate Benches of the Tribunal in COMMISSIONER OF CENTRAL EXCISE & SERVICE TAX LARGE TAXPAYER UNIT, BANGALORE VERSUS M/S BILL FORGE PVT LTD, BANGALORE [2011 (4) TMI 969 - KARNATAKA HIGH COURT] where it was held that 'it is only when the assessee had taken the credit, in other words by taking such credit, if he had not paid the duty which is legally due to the Government, the Government would have sustained loss to that extent. Then the liability to pay interest from the date the amount became due arises under Section 11AB, in order to compensate the Government which was deprived of the duty on the date it became due. Without the liability to pay duty, the liability to pay interest would not arise. The liability to pay interest would arise only when the duty is not paid on the due date. If duty is not payable, the liability to pay interest would not arise.'
In the case of J.K. TYRE & INDUSTRIES LTD. VERSUS ASST. COMMR. OF C. EX., MYSORE [2016 (11) TMI 911 - CESTAT BANGALORE - LB], Tribunal Large Bench has come to the conclusion that interest liability would not arise when the assessee had merely availed credit and had reversed the same before utilizing the availed credit for remittance of duty.
Thus, the recovery of interest is not legally justified and not maintainable.
Availing CENVAT Credit on ineligible documents, contravening the provisions of Rule 9 of the CENVAT Credit Rules, 2004 - HELD THAT:- The appellant is a Government owned company and it has got different circles, operational areas and divisions, as such discrediting these documents for the purpose of availment of CENVAT Credit is not legal and proper. Unless there is an allegation that the capital goods are diverted or not installed in the appellant’s premises, it has to be held that the appellant is eligible for the CENVAT Credit availed.
Extended period of limitation - HELD THAT:- It is informed that the Show Cause Notice was issued on 30.09.2013 which is well beyond the actual cutoff date for the issue of the Show Cause Notice i.e., 25.04.2011 / 25.10.2011, as the case may be and contended that extended period could not be invokable - reliance placed upon the decision rendered in the case of INDIAN OIL CORPORATION LTD. VERSUS COMMISSIONER OF C. EX., AHMEDABAD [2013 (9) TMI 310 - CESTAT AHMEDABAD] wherein it was held that Public Sector Undertaking, cannot have mala fide for non-discharge of duty and there cannot be an allegation of intention to evade duty - the demand notice issued is time barred and there is no justification for invoking the extended period of limitation in the facts of this case. Thus, the appellant succeeds on limitation also.
The demand notice issued is time barred and there is no justification for invoking the extended period of limitation in the facts of this case. Thus, the appellant succeeds on limitation also.
The impugned order passed by Commissioner of Central Excise and Service Tax cannot sustain and so, ordered to be set aside - appeal allowed.
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2024 (5) TMI 130 - CESTAT NEW DELHI
CENVAT Credit - Availment of CENVAT credit on input services - availment of CENVAT credit on inadmissible documents - non-payment of amount under rule 6(3)(i) of CENVAT credit rules - non-payment of service tax on manpower recruitment or supply agency services.
Availment of credit on certain input services - HELD THAT:- The term input services is very wide and cannot be restricted to any specific type and nature of input services. However, with the introduction of exclusion clauses A to C, it is clear in no uncertain terms that CENVAT credit can be availed on all the input services which are used by the service provider for providing output services as well as services that are covered and defined in the inclusive part of the definition with the specific exclusions - the meal vouchers being provided to the employees, prior to 1.4. 2011, the same is a welfare activity - Tribunal in the case of ANDRITZ TECHNOLOGIES PVT. LTD. VERSUS COMMISSIONER OF CENTRAL TAX, BANGALORE [2019 (12) TMI 122 - CESTAT BANGALORE] has held that 'As far as Food coupons/sodexo coupons are concerned, I find that these services are in the nature of welfare service and purely for personal consumption of employees as these are perquisites allowed to the employees. Further, I find that Commissioner (Appeals) has given reasons for denying the Cenvat credit on sodexo coupon and I do not find any fault in that and uphold the same.'
For the period post 1.4.2011, there is a specific exclusion provided under clause C to Rule 2(I) that outdoor catering service, if used for personal use or consumption of any employee is not considered to be input service. Therefore, there are no infirmity in the impugned order in this regard.
Credit availed on the accommodation provided to staff - HELD THAT:- The service of accommodation was necessary for the purposes of providing the service of consulting engineering services and is integrally connected with the same. Perquisites are generally meant for the comfort, convenience and welfare of the employees. Even though it has been argued that perquisites do fall within the scope of input service, the benefit of Cenvat credit still cannot be allowed, as any activity for the comfort, convenience and welfare of its employees cannot be treated as having been done in course of furtherance of business - Bombay High Court in the case of CCE VERSUS MANIKGARH CEMENT [2010 (10) TMI 10 - BOMBAY HIGH COURT] held that 'in the present case, in our opinion, rendering taxable services at the residential colony established by the assessee for the benefit of the employees, is not an activity integrally connected with the business of the assessee and therefore, the tribunal was not justified in holding that the services such as repairs, maintenance and civil construction rendered at the residential colony constitutes 'input service' so as to claim credit of service tax paid on such services under Rule 2(1 ) of the CENVAT Credit Rules, 2004.' - there is no infirmity the findings of the adjudicating authority in the impugned order in this regard.
Availment of credit on inadmissible documents - HELD THAT:- All the services for which input credit was taken had actually been received by the appellant and the incidence of Service Tax had been borne by the appellant. Not mentioning certain particulars in the invoice is only a procedural error, and the availment of CENVAT credit is a substantive benefit which cannot be denied on procedural grounds - as per the proviso to Rule 9(2) of the Credit Rules, as long as all the critical details mentioned therein are available on the invoice, the same would be a valid document for taking credit. No evidence has been brought forward by the Department to state that the inputs were not duty paid. Merely for the said discrepancies, Cenvat credit cannot be denied as held in catena of judgments, some of which have been cited by the Learned Counsel, so long as it is not in dispute that the service tax was paid by the service provider. In fact the appellant has produced an affidavit from the seller of the goods that the duty tax had been paid. Accordingly, the Commissioner had erred in disallowing the credit on such invoices.
Non-payment of an amount under Rule 6(3)(i) of the credit rules for providing consulting engineer service in Jammu and Kashmir for the period 2009–10 to 2012–13 - HELD THAT:- The impugned order has held that the credit reversed by the appellant for the period October 2013 to March 2014 does not pertain to the period in dispute. It has been argued that the detailed calculation was for the Cenvat credit reversal for the period 2008-09 to 2012-13. It is noted that in several decisions, it has been consistently held that when proportionate credit has been reversed the department cannot fasten liability under Rule 6(3)(i) of the Credit rules - The Tribunal in the case of RESPONSIVE INDUSTRIES LTD. AND AXIOM CORDAGES LTD. VERSUS COMMISSIONER OF CENTRAL EXCISE, THANE-II [2022 (8) TMI 639 - CESTAT MUMBAI] had examined the above issue in respect of the appellant who had reversed the Cenvat credit in respect of exempt services, by holding that inasmuch as the quantum or method adopted by the appellant was not questioned by the department, the demand of Cenvat credit cannot be sustained - the appellants have reversed the credit attributable to the inputs/inputs services alleged to have been used in the provision of exempted service - the demand on account of the said issue is liable to be set aside.
Taxability of services under “manpower recruitment of supply agency services” - HELD THAT:- In view of the decision of the Supreme Court in C.C.,C.E. & S.T. – BANGALORE (ADJUDICATION) ETC. VERSUS M/S NORTHERN OPERATING SYSTEMS PVT LTD. [2022 (5) TMI 967 - SUPREME COURT], it has to be held that the demand can be confirmed for the normal period only and the demand for the extended period cannot be sustained.
Interest and penalty - HELD THAT:- The demand for interest upheld by relying on Supreme Court judgment, in the case of PRATIBHA PROCESSORS VERSUS UNION OF INDIA [1996 (10) TMI 88 - SUPREME COURT], wherein the Hon’ble Supreme Court held that the levy of interest is compensatory and automatic.
Penalties imposed under Sections 76, 77, & 78 - HELD THAT:- The department has not been able to establish the ingredients of malafide intention of the appellant to evade payment of service tax. Hence, the penalties imposed on the appellant is set aside.
Appeal allowed in part.
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2024 (5) TMI 129 - CESTAT CHENNAI
Levy of Service tax - commission accounted by the appellant in their books account - amount collected for installation and activation of TV connection is inclusive of service tax or not - HELD THAT:- The appellant provides installation and activation of Sun DTH TV connection. The activation charges collected from customer by M/s. Sun DTH TV is inclusive of service tax. The appellant does not collect any further amount from customer. The commission for providing the service to the customer thereafter is paid to the appellant by M/s. Sun Direct TV. It is clear that the amount collected from the customer includes the service tax as well as the commission charges paid to the appellant.
The very same issue was considered by the Tribunal in the case of M/S. KUMAR’S ELECTRONICS VERSUS COMMISSIONER OF CENTRAL EXCISE [2019 (6) TMI 852 - CESTAT CHENNAI] where it was held that 'It is true that the appellant is providing services to the DTH operators and is getting commission for such services. If the appellant had paid service tax on such commission, the main DTH operator could have availed Cenvat credit of the same thereby proportionately reducing the amount paid in cash by the DTH operator. Therefore the entire exercise is also revenue-neutral.'
The facts in the case are identical to the facts in the case of Kumar’s Electronics - The facts being identical, the decision squarely applies.
The impugned order is set aside. The appeal is allowed.
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2024 (5) TMI 128 - CESTAT CHENNAI
Levy of service tax - Construction of Residential Complex service - payments received where number of units are 12 or less than that - land owner shares - composite contracts or not - HELD THAT:- The definition of Construction of Residential Complex does not apply to constructions in the nature of composite contracts which involve both providing services as well as use of goods and materials. The services which involve composite contracts fall under the definition of Works Contract Services which was brought forth from 01.06.2007. Therefore in cases where there is provision of services of composite nature, the demand can be raised only under WCS. The demand under Construction of Residential Complex would not apply as this definition deals with service simplicitor.
The Tribunal in the case of REAL VALUE PROMOTERS PVT. LTD., CEEBROS PROPERTY DEVELOPMENT, PRIME DEVELOPERS VERSUS COMMISSIONER OF GST & CENTRAL EXCISE, CHENNAI [2018 (9) TMI 1149 - CESTAT CHENNAI] had considered this issue and held that the demand under Residential Complex Services / CICS / CCS cannot sustain prior to 01.07.2012 for the reason that these services do not apply to composite construction services. The decision in the case of Real Value Promoters Pvt. Ltd. was followed by the Tribunal in the case of Jain Housing & Construction Limited which has been sustained by the Hon'ble Apex Court.
Further, this Tribunal in the case of M/S. SRINIVASA SHIPPING & PROPERTY DEVELOPERS LTD. VERSUS THE COMMISSIONER OF GST & CENTRAL EXCISE, CHENNAI [2023 (12) TMI 1003 - CESTAT CHENNAI] on similar set of facts and issue had held that the demand under Residential Complex Services cannot sustain.
The demand raised under Construction of Residential Complex Services cannot sustain - the impugned order is set aside - Appeal allowed.
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2024 (5) TMI 127 - CESTAT CHENNAI
Non-payment of service tax - Renting of Immovable Property services - Management, Maintenance and Repair services - Business Auxiliary Services.
Levy of service tax - Renting of Immovable Property services - whether the demand of service tax cannot be sustained for the reason that the premises has been let out by appellant for conduct of guest rooms/accommodation? - HELD THAT:- The lease deed clearly shows that the premises is to be exclusively used for guest rooms and connected facilities like kitchen, dining room, parking spaces only. The demand of service tax cannot sustain when the premises is rented out for the purpose of accommodation and related activities. It is therefore held that the demand cannot sustain and requires to be set aside - demand set aside.
Levy of service tax - Business Auxiliary Services - nature of activity - sale or service - transfer of percentage of holding to joint venture partner - HELD THAT:- The transaction is nothing but sale of shares and there is no situation of providing services to M/s. Ascott (Mauritius) .The Tribunal in the appellant's own case M/S. RATTHA HOLDING CO. PVT. LTD. VERSUS COMMISSIONER OF CENTRAL SERVICE TAX, CHENNAI [2018 (9) TMI 1722 - CESTAT CHENNAI] had considered the very same issue and held that the demand cannot sustain as there is no provision of services - the demand under Business Auxiliary Services requires to be set aside.
Levy of penalty - appellant has paid the service tax along with interest before passing the adjudication order - Management, Maintenance and Repair services - HELD THAT:- Taking note of the submission made by the Ld. Counsel for the appellant that the amount of service tax under this category along with interest has been paid before passing of the adjudication order, the penalty imposed in this regard is set aside.
The impugned order is modified to the extent of setting aside the demand, interest and penalties imposed under Renting of Immovable Property and Business Auxiliary Services as discussed above. The demand and interest under Management, Maintenance and Repair Service is upheld. The penalty on this count is set aside. The appeal is partly allowed.
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2024 (5) TMI 74 - CALCUTTA HIGH COURT
Time Limitation for filing returns - revised returns filed on 14.08.2009 under Rule 7B of the Service Tax Rules, 1994 are within time or not - second SCN issued on same set of facts as first SCN - Whether the Learned Tribunal has committed the gross error by not appreciating that the revised return was filed on 14.08.2003 which is beyond the stipulated period and as such the taxable value mentioned in original ST-3 returns is to be considered as correct or not?
HELD THAT:- The cases where the Returns are not submitted within 90 days are dealt with in Rule 7(3), which stipulates that where the return prescribed under Rule 7B is furnished after the date prescribed for submission of such return, the person liable to furnish the said return shall pay to the credit of the Central Government a certain sum of money which is stipulated under said Rule considering the period of time. Therefore, the ST-3 return which was filed by the assessee on 22nd May, 2009 cannot be ignored by the department and the last date for filing the revised Return ought to be calculated from the said date and if the same is done, revised Return filed on 14th August, 2009 is well within time.
It must also be noted that there is an earlier show cause notice issued to the assessee dated 8th April, 2010. The said show cause notice is one of the relied upon documents in the show cause notice dated 21st September, 2010, which is the subject matter of this case. Based on an audit report, it was pointed out that the assessee has himself interpreted Rule 3 and 4 of the Rules. This was taken into consideration by the assessee and the assessee rectified the mistake, reversed the credit which was availed and also paid the interest at the applicable rate. The aspect clearly brought out by the assessee in their response to the show cause notice vide a reply dated 27th October, 2010.
The contention of the assessee that the second show cause notice issued on the same set of facts which was very much available with the department when the show cause notice dated 8th April, 2010 was issued, would be a sufficient ground to hold that the show cause notice issued which was ultimately culminated in the Order-in-Original dated 10th February, 2011 could be held to be barred by time.
The learned Tribunal has taken note of the undisputed facts that too from the order-in-original as passed by the adjudicating authority and granted relief to the assessee - no questions of law, much less substantial question of law, arising for consideration in this appeal - Appeal dismissed.
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2024 (5) TMI 73 - CESTAT ALLAHABAD
Exemption from Service tax - services provided to SEZ units - conditions of N/N. 9/2009-ST dated 31.03.2009, N/N. 17/2011-ST dated 01.03.2011, N/N. 40/2011-ST dated 20.06.2011 and N/N. 12/2013-ST dated 01.07.2013 fulfilled or not - It is the case of the Appellant that since all the documents were resumed by the Officers of Service Tax Department at the time of search of the premises of the Appellant on 13.01.2015, including A-1 Forms also, the Appellant could not produce the same before the learned Commissioner (Appeals).
HELD THAT:- There is no dispute that the services have been provided to “SEZ units”; “SEZ units to whom services have been provided were duly authorized by UAC to receive certain services without payment of Service Tax for use in the authorized operations”; “SEZ units were issued duly approved list of specified services in proper prescribed form”; there is no dispute that the services provided by the Appellant were used in authorized operations of recipient SEZ units.
The Hon'ble Supreme Court has consistently held that the eligibility clause of exemption Notification has to be given strict meaning of which the Notifications should be interpreted in terms of its language and once an Assessee satisfies the eligibility clause, the exemption clause may be construed liberally. Thus, an eligibility criteria deserves a strict construction, although construction of a condition thereof may be given a liberal meaning - Hon”ble Supreme Court in the case of COMMISSIONER OF CUSTOMS (IMPORT) , MUMBAI VERSUS M/S. DILIP KUMAR AND COMPANY & ORS. [2018 (7) TMI 1826 - SUPREME COURT] held that 'If exemption is available on complying with certain conditions, the conditions have to be complied with. The mandatory requirements of those conditions must be obeyed or fulfilled exactly, thought at times, some latitude can be shown, if there is failure to comply with some requirements which are directory in nature, the non-compliance of which would not affect the essence or substance of the notification granting exemption.'
Since there was substantial compliance of substantive clause of the Notifications in question, the Appellant is entitled to exemption from payment of Service Tax in respect of services provided by the Appellant to SEZ units/Developers - the impugned order is set aside - appeal allowed.
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2024 (5) TMI 72 - CESTAT HYDERABAD
Refund in cash in respect of certain amount of service tax - appellant had not carry forward the credit of the said amount in accordance with the provisions under Section 140 of CGST Act 2017 and Rules made thereunder - reverse charge mechanism - Section 142(3) of the Act read with Section 11B of the Central Excise Act 1944 - HELD THAT:- The perusal of CCR under the existing law clearly brings out that the refund of unutilized cenvat credit can be made only for specific purpose under Rule 5, 5A and 5B, subject to certain prescribed/notified procedure, conditions and limitations etc., as may be specified or notified by notification. Also, it is obvious that there is no provision for refund of CENVAT credit either under CCR 2004 or Finance Act 1994 for service tax paid correctly, which in any case has not been disputed by the appellant. They have also admittedly not filed any revised ST-3 within the specified tax limit as would have been otherwise required under Section 142(9)(b).
Essentially when there is no provision in the law either under the Cenvat Credit Rules 2004 or in the Finance Act 1994 to allow cash refund, for such accumulated credit, Section 142(3), per se, cannot make it an eligible refund merely because the appellant have not been able to utilize on the ground of not having filed the revised return or were not able to take the TRAN-1 route etc., within specified time.
It is observed that in the case of Banswara Syntex Vs CCE [2018 (10) TMI 1064 - RAJASTHAN HIGH COURT], the Hon’ble Division Bench of Rajastan High Court held that refund of accumulated unutilized credit on account of education cess and secondary and higher secondary education cess was not entitled for cash refund in view of their having no provision under the Act of 1944.
There is no infirmity in the Order passed by the Commissioner (Appeals) upholding the Order of the Original Authority, who had rejected the claim of refund in cash filed by the appellant. Accordingly, the appeal filed by the appellant is liable to be dismissed.
Appeal dismissed.
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2024 (5) TMI 71 - CESTAT HYDERABAD
Short payment of service tax - rental income received from educational institution during 2014-15 - non-submission of material proof like invoices, bills etc. - assessee could not give details of exemption claimed and the fact that they were not mentioned in the returns filed nor any invoice/documents were provided to the audit team - N/N. 25/2012-ST was substituted by N/N. 06/2014-ST with effect from 11.07.2014 - suppression of facts or not - Extended period of Limitation - penalty u/s 78 of FA - HELD THAT:- On going through notification it is clear that the exemptions were not available during this period even though it was otherwise available prior to the period and even after the subsequent period. It is also found that the show cause notice has not given clear break up of various incomes which were received as income arising out of “services provided by the appellant” nor they have given any specific applicable rate of duty or exemption under which they were either liable to service tax or otherwise exempted.
The mere perusal of the show cause notice shows that it has not brought categorically the grounds on which the demand was proposed. Further, it is an admitted fact that they were not liable to service tax prior to this demand period or subsequent to this demand in terms of extent notifications. Under this condition, there could have been a bonafide belief that they were not liable to pay service tax. Further, merely because they were raising the invoices in the same old fashion it does not make them defaulter who deliberately and intentionally, despite knowing the fact that they were liable to pay service tax, chose not to pay service tax. No such details or grounds to the contrary have been brought in the show cause notice for invoking proviso to Section 73.
Proviso to Section 73 provides that the demand can be raised even beyond the normal period of 30 months, but within 5 years, where the service tax has not been levied or paid etc., by fraud, willful misstatement, suppression of facts, contravention of any provision of the chapter or the rules made therein with intent to evade payment of service tax - In the facts of the case, proviso to Section 73 is not applicable and therefore extended period cannot be invoked for demanding service tax on the rental income during the material period in 2014-15 as the show cause notice has clearly been issued after 30 months from the given date. Therefore, the demand is clearly time barred. Since the demand is already time barred and no deliberate suppression etc., is invokable in the facts of the case, the penalty is also not leviable under Section 78.
The appeal is allowed.
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2024 (5) TMI 70 - CESTAT BANGALORE
Reversal of proportional CENVAT Credit - trading activity - exempt services - respondent had neither maintained separate inventory nor had opted in terms of Rule 6(2) of CENVAT Credit Rule (CCR), 2004 - HELD THAT:- If the manufacturer or provider of service had failed to exercise the option under sub-rule 6(3) of the CCR, 2004 will be allowed to pay the proportionate credit along with the interest at the rate of 15% per annum from the due date for payment of amount till the date of payment. Hence the appellant is eligible for the benefit of reversing the proportionate credit only if it is done along with interest as per law. As per Rule 6(3) of the CCR, 2004 the appellant in the first place is not eligible to avail credit on exempted products. For the benefit of the taxpayers where common credit is availed on both dutiable and exempted goods/services, certain provisions are enabled for the convenience of the taxpayer to ensure that credit is taken only on the dutiable products/services.
In the present case, the Commissioner while allowing payment of proportionate credit as per Rule 6(3A), with regard to interest holds that interest is not liable to be paid since sufficient balance was available in their account. The Commissioner has failed to notice that Rule 6(3A) is only an option given to the appellant allowing reversal of credit at a later date only if it is paid along with interest.
The reliance placed by the Commissioner on the decision of the Hon’ble High court of Karnataka in the case of CCE, ST & LTU Bangalore vs Bill force Ltd. [2011 (4) TMI 969 - KARNATAKA HIGH COURT] is misplaced since the facts of that case was excess availment of credit which was unutilized and reversed. The present case is clearly distinguishable as it is allowing the option of proportionate reversal of credit provided the reversal happens along with interest.
The Commissioner’s order with regard to confirmation of service tax demand of Rs.1,14,64,277/- upheld - Revenue’s appeal with regard to demand of interest is upheld - interest is to be paid on the above demand of Rs.1,14,64,277/- in terms of Rule 6(3A) of the Cenvat Credit Rules, 2004.
Revenue’s Appeal is allowed only to the extent of demand of interest.
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2024 (5) TMI 69 - CESTAT MUMBAI
CENVAT Credit - Credit availed on the basis of bogus invoices issued by Automobile dealers - whether assessment to tax at the hands of the service providers end can be questioned at the hands of service receiver? - HELD THAT:- On going through the case record and perusing the order passed by this Tribunal in respect of the Appellant for the first showcause notice since this notice is based on statement of demand issued in pursuance to the said show-cause notice.
As could be noticed, this Tribunal has taken note of those statement of employees of motor vehicle dealers as discussed in another case namely M/S. CHOLAMANDALAM MS GENERAL INSURANCE CO. LTD. VERSUS THE COMMISSIONER OF G.S.T. & CENTRAL EXCISE, CHENNAI [2021 (3) TMI 24 - CESTAT CHENNAI], while passing the order and it had relied upon the judgements passed by this Tribunal in Modular Auto Ltd. Vs. CCE [2018 (8) TMI 1691 - MADRAS HIGH COURT] and given the findings that assessment to tax at the hands of the service providers end can’t be questioned at the hands of service receiver (Appellant in this case).
The order passed by the Commissioner of Central GST, Audit-I, Pune is hereby set aside - appeal allowed.
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