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Service Tax - Case Laws
Showing 401 to 420 of 30277 Records
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2024 (8) TMI 851
Failure to discharge correct service tax liability, by suppressing the gross value, not declared in the statutory ST-3 returns - recovery of service tax with penalty - invocation of extended period of limitation - HELD THAT:- There is no dispute as regards the chargeability of the service tax on the services provided by the appellant to the recepients and neither side is disputing the same. However, what is being disputed, apart from the limitation aspect, is that the liability pointed out by the Department has already been met by the appellant when they filed the service tax return on 03.12.2021, wherein, they have already availed and utilised the credit admissible to them. It is further found that though it is an admitted position that the ST-3 returns have been filed, it is not clear whether any dispute has been raised by the Department against such filed ST-3 returns or any separate action has been initiated for denying the benefit of credit claimed in the said ST-3 returns by the appellant. Further, the Commissioner (Appeals) has decided the issue of non-entitlement of credit in a rather cryptic manner by merely reiterating the grounds taken by the Original Adjudicating Authority.
It is observed that in his findings, the Commissioner (Appeals) has not effectively addressed the issues raised by the appellant in support of their being eligible for credit. Various grounds for denying the credit has to be evaluated in the backdrop of the factual matrix and various case laws relied upon by the appellant. Therefore, in the interest of justice, the matter needs to be remanded back to the Commissioner (Appeals) to evaluate all the evidences and case laws adduced by the appellant and after hearing the same, he should decide whether they are entitled for such credit as claimed and availed by them or otherwise.
Time limitation - HELD THAT:- The matter needs to be re - examined in the light of evidences on record and certain evidences as argued by the Learned Advocate i.e screen shots of their having tried to file ST-3 returns during the relevant time, correspondence with the Department in this regard etc., may have to be taken into consideration.
Appeal is disposed off by way of remand to the Commissioner (Appeals).
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2024 (8) TMI 850
Classification of service - renting of immovable property service or not - facility of allowing car parking to visitors of mall - whether the appellant is liable to pay service tax for the parking area of car or not? - HELD THAT:- The land used for parking purposes is not chargeable to service tax under the category of “renting of immovable property service”.
This Tribunal in the case of MAHESH SUNNY ENTERPRISES PVT. LTD. VERSUS COMMISSIONER, SERVICE TAX COMMISSIONERATE [2014 (2) TMI 1001 - DELHI HIGH COURT] where it was held that 'Now, parking services - regardless of wherever it is carried on-stand excluded in entirety. Therefore, it is not open now for the revenue to argue that it falls within the expression "airport service" under Section 65(105)(zzm). Parliament would have manifested its intention to bring to tax a part of the activity, carried out in airport premises, if it wished, in more express and clearer terms.'
Admittedly, in this case, the appellant has not recovered any parking charges from the tenants/owners of the shops or their employees.
Thus, no Service Tax is payable by the appellant for car parking fees under the category of “renting of immovable property service”. Therefore, the demand raised against the appellant on car parking charges is set aside - no penalty is imposable on the appellant.
The impugned order is set aside - appeal allowed.
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2024 (8) TMI 792
Classification of service - Management, Maintenance, or Repair service - site formation and clearance service - supply of tangible goods services - Inclusion of free supply material in the gross value of construction service.
Classification of service - HELD THAT:- It is found that as per chart given by the appellant it prima-facie appears that almost all the demands raised by the department are not sustainable. Even in the case of supply of tangible goods, though the invoices pertainto 16.05.2008, but ignoring the vital facts, the demand was confirmed.
Inclusion of free supply material in the gross value of construction service - HELD THAT:- As regards the free supply of material supplied by the service recipient, the issue is covered by the Larger Bench of this Tribunal in the case of M/S BHAYANA BUILDERS (P) LTD. & OTHERS VERSUS CST, DELHI & OTHERS. [2013 (9) TMI 294 - CESTAT NEW DELHI-LB] which was upheld by the Hon’ble Supreme Court in COMMISSIONER OF SERVICE TAX ETC. VERSUS M/S. BHAYANA BUILDERS (P) LTD. ETC. [2018 (2) TMI 1325 - SUPREME COURT]. All the other issues, such as repair of roads etc., are prima-facie covered by various notifications.
There are no hesitation to state that entire order was passed is without application of mind and without appreciating all the facts and the legal authority for each and every service - the impugned order is set aside - Appeal is allowed by way of remand to the Adjudicating Authority.
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2024 (8) TMI 791
Non-payment of service tax - Business Support Service - Service tax liability on the appellant on endorsement services and participation in a reality show - principal and agent relationship.
Non-payment of service tax - Business Support Service - remuneration received for a reality show - HELD THAT:- As far as the activity of the appellant in respect of playing in the IPL is concerned, the Tribunal has consistently held that the players showing Logos, Mascots, Insignia, Labels etc. of business houses as part of their attire are not promoting any business of the said companies. They are simply playing cricket and are wearing the attire as per the conditions described by the franchisers.
Tribunal held the same in the case of SOURAV GANGULY VERSUS COMMISSIONER OF SERVICE TAX, KOLKATA (NOW COMMISSIONER OF CENTRAL GOODS & SERVICE TAX & CENTRAL EXCISE, KOLKATA SOUTH) [2020 (12) TMI 534 - CESTAT KOLKATA] and the same has been consistently followed by the Tribunal in PINAL ROHIT SHAH VERSUS C.C.E. & S.T. -VADODARA-II [2023 (6) TMI 956 - CESTAT AHMEDABAD] and RAHUL DRAVID VERSUS COMMISSIONER OF SERVICE TAX [2012 (12) TMI 114 - CESTAT, BANGALORE] where it was held that 'In the identical agreements, in respect of other players engaged by different teams, in all those cased, this Tribunal relying on the High Court in the case of SOURAV GANGULY VERSUS UNION OF INDIA & OTHERS [2016 (7) TMI 237 - CALCUTTA HIGH COURT] held that arrangement between the owner Company and the cricket player is of employment hence, players are not directly involved in brand promotion of a brand owner. Therefore, the activity of the cricket player does not fall under the category of Business Auxiliary Services.'
Revenue argues that there is no principal and agent relationship between the appellant and M/s Rhiti as there is no agreement between them; therefore, the service tax paid by M/s Rhiti cannot obviate liability of the appellant. We find that the argument is not acceptable for two reasons. One being that there is no requirement of a formal agreement between the appellant and M/s Rhiti; the way things are arranged in course of the business indicate the nature of the principal and agent; it is not the Department’s case that M/s Rhiti were the go between M/s INX and the appellant; therefore, it cannot be said that there is no principal and agent relationship. The second reason being, assuming that there is no such relation, the appellant did not receive any remuneration from M/s INX and therefore, they are not liable to pay any service tax; therefore, the only logical conclusion is that the appellant acted through his agent, who on receipt of consideration from M/s INX has paid the requisite service tax. Understandably, on the same transaction, the appellants are not liable to pay service tax again.
The appeal is allowed.
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2024 (8) TMI 790
Liability of service tax under Section 66E of Finance Act for ‘tolerating an act’ - Notice Pay i.e. the amount recovered from an employee for quitting a job before the time period prescribed under an agreement/ job letter - HELD THAT:- The issue involved in the present case is no longer res-integra in view of the decision in C.S.T. -SERVICE TAX – AHMEDABAD VERSUS INTAS PHARMACEUTICALS [2021 (6) TMI 906 - CESTAT AHMEDABAD] where it was held that the amount recovered from the employee for quitting the employment without serving during notice period the said amount is not liable to service tax.
In the present case the impugned order is not sustainable - Appeal allowed.
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2024 (8) TMI 789
Levy of service tax - rent charges collected towards hiring of Earth Moving Equipment - transferring of right of possession and use of earth moving machinery - deemed sale or service - HELD THAT:- The appellant have given earth moving equipment on monthly rent basis to their lessee and the right to possession and use of earth moving equipment has been transferred to the lessee. Accordingly, the same is the deemed sale under Article 366 (29A)(d) of Constitution of India. The transaction is whether deemed sale or service is established on the basis of invoice raised by the appellant whereby the appellant have paid State VAT therefore, the transaction is clearly a deemed sale.
As per the above definition of service in the post 01.07.2012, in the negative list regime with effect from 01.07.2012 it is clear that activity which constitute transfer, delivery or supply of any goods which is deemed sale within the meaning of Article 366 (29A)(d) of the Constitution of India, is excluded from the definition of service. In the facts of the present case, since the transaction is deemed sale and appellant have paid VAT, the same is clearly covered under sub-clause (ii) of clause (a) of Section 65B(44) which is excluded from the definition of service itself. The activity of the appellant does not fall under any taxable service.
Thus, it is clear that transaction of renting of Earth Moving Equipment to various clients firstly, does not fall under supply of tangible goods and secondly, the service prior to 01.07.2012 and subsequent thereto it does not fall under the definition of input service as mentioned above. Therefore, the activity of renting of Earth Moving Equipment to various clients is not a taxable service.
The impugned order is not sustainable, the same is set-aside - Appeal allowed.
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2024 (8) TMI 788
Levy of penalty u/s 78 of the Finance Act, 1994 - simultaneous penalty u/s 76 and 78 were proposed to be imposed - applicability of decision of Hon’ble Supreme Court in case of Nizam Sugar Factory [2006 (4) TMI 127 - SUPREME COURT] - recurring SCN - HELD THAT:- In view of the above judgment of jurisdictional High Court in Raval Trading Company [2016 (2) TMI 172 - GUJARAT HIGH COURT] and Sai Consulting Engineering Pvt Ltd [2018 (5) TMI 1425 - GUJARAT HIGH COURT] once the penalty was imposed under Section 76 no simultaneous penalty can be imposed under both section. For this reason, penalty under section 78 is not imposable.
It is further found that this show cause notice in the present case was issued as recurring in nature, therefore, the judgment of Hon’ble Supreme Court in case of Nizam Sugar Factory is clearly applicable. Consequently, the ingredient such as fraud, collusion, willful mis-statement, contravention of any provision or rules with intent to evade payment of duty does involve in the present case.
The demand u/s 73 (1) can be made only when there is no fraud, collusion, willful mis-statement, contravention of any provision or rules with intent to evade payment of duty, if these ingredients exist then the demand should be raised under proviso to Section 73 (1). For this reason also for demanding the service tax, proviso was not invoked. Therefore, different yardstick for imposing penalty under Section 78 cannot be adopted by the Revenue. The Learned Commissioner has rightly refrained from imposing penalty under Section 78.
The respondent is not liable for penalty under Section 78, therefore, the order of the Learned Commissioner so far he refrained from imposing penalty under Section 78 of Finance Act, 1994 is correct and legal - the revenue’s appeal is not maintainable.
The Revenue’s appeal is dismissed.
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2024 (8) TMI 787
CENVAT Credit - GTA Services - Credit on invoices of Authorized Service Stations for the services provided during the Warranty Period - wrongful availment of benefit of Notification No 19/2003-ST in respect of installation services provided for imported AC.
Service Tax on GTA Services payable under Reverse Charge Mechanism through CENVAT Account - HELD THAT:- This issue is no longer res-intregra and has been decided in series of decisions referred to by the Appellant during the arguments. In case of COMMISSIONER CENTRAL EXCISE AND CUSTOMS VERSUS PANCHMAHAL STEEL LTD. [2014 (12) TMI 876 - GUJARAT HIGH COURT], Hon’ble Gujarat High Court while upholding thje decision of larger bench of tribunal observed 'A combined reading of these statutory provisions would, therefore, establish that though the assessee was liable to pay service tax on G.T.A. Service, it could have utilized Cenvat credit for the purpose of paying such duty.' - thus, there are no merits in the demand made. However as the appellant has already paid the amount in cash no refund shall be admissible to the appellant because the liability to pay the service tax has not been set aside. However the demand for interest of Rs 7,97,345/- made in respect of these amounts is set aside.
Availed CENVAT Credit on invoices of Authorized Service Stations for the services provided during the Warranty Period - HELD THAT:- This issue is also no longer res-integra. In case of M/S ESCORTS CONSTRUCTION EQUIPMENT LTD. VERSUS CCE, DELHI-IV [2023 (12) TMI 601 - CESTAT CHANDIGARH] after taking note of previous decisions on the issue Chandigarh Bench has observed 'this Tribunal in various decisions relied upon by the appellant on identical issues has consistently held that the assessee is entitled to cenvat credit of service tax paid on Repair and Maintenance during the warranty period as the same fall within the ambit of ‘Input Service’ as provided in Rule 2(l) of CCR, 2004.' - thus, CESTAT has constantly been taking view in respect of admissibility of CENVAT credit in on warranty services provided through third party – authorized service centres. Thus there are no merits in this demand and set aside the same.
Wrongly Availed the benefit of Notification No 19/2003-ST in respect of installation services provided for imported AC - HELD THAT:- In the case of indivisible contracts were the supply or transfer of property in goods was also involved along with the provision of service of erection, installation and commissioning no service tax could have been levied prior to 01.06.2007. As the service tax itself was not leviable in respect of these services provided by the appellant, then question of admissibility of abatement/ exemption under N/N. 19/2003-ST becomes irrelevant. Hence there are no merits in the demand made by disallowing the benefit of said notification.
As all the demands are set aside on merits, the demand of interest and also the penalties imposed on appellant are set aside.
Appeal allowed.
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2024 (8) TMI 786
Invocation of Extended period of limitation - suppression of facts or not - income of service provider shown in the Income Tax Return - HELD THAT:- The present case was initiated on the basis of the income tax documents, which were neither produced nor seized from the custody of the appellant but were in the realm of public documents, and the presumption is on the truthfulness of the documents. The reliance placed by the appellant on the decision in Vatsal Resources Pvt. Ltd. (supra) is not applicable, as in the said case, the documents were recovered from the office premises of another company, which not accepted as an admissible piece of evidence.
Difference in the value, on the basis of ITR and the ST-3 Returns - mis-statement of facts - HELD THAT:- The Department has proceeded in the present case on the basis of the information received from the Income Tax Department relating to the income from the provision of services shown in the ITR as well as income on which TDS has been deducted and the gross amount of value of service shown in the ST-3 Returns was provided. The Tribunal in the case of VATSAL RESOURCES PVT LTD VERSUS C.C.E. & S.T. -SURAT-I [2022 (7) TMI 718 - CESTAT AHMEDABAD], following the earlier decisions in line, observed that by relying on the TDS/26-AS statements, the demand of service tax under the Service Tax Act cannot be made. There is no quarrel to the settled principle that amounts shown in the ITRs or Balance Sheets are not liable for service tax, however, here the conduct of the appellant cannot be ignored as he failed to provide the documents when asked for by the Department - Moreover, the plea taken by him for this discrepancy was only a bald reasoning without any supporting evidence. In the facts and circumstances of the present case, the impugned demand is confirmed.
Since the differential tax liability upheld, the interest liability automatically accrues under Section 75 of the Act. The appellant having suppressed the correct taxable income from the department which was ascertained on the basis of the data received from the Income Tax Department. Consequently, the penalty imposed on the appellant is upheld.
There are no reason to interfere with the impugned order - appeal dismissed.
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2024 (8) TMI 785
CENVAT Credit - capital goods or inputs - tower materials and pre-fabricated shelters (tower materials) falling under Chapter 73 of the First Schedule of the Tariff Act which materials were used in setting up of the ‘tower’ for transmission - HELD THAT:- The decision of the Tribunal in M/S VODAFONE MOBILE SERVICES LIMITED VERSUS COMMISSIONER OF CENTRAL EXCISE, JODHPUR – (RAJ.) [2022 (10) TMI 581 - CESTAT NEW DELHI] holds that tower materials would qualify as ‘inputs’ under rule 2(k) of the CENVAT Rules and they would also be capital goods and, therefore, credit could be taken.
In view of the aforesaid decision of the Tribunal in Vodafone Mobile Services, the impugned order passed by the Commissioner (Appeals) deserves to be set aside and is set aside.
Appeal allowed.
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2024 (8) TMI 784
Levy of service tax - fee receipt and job training - HELD THAT:- The appellant placed reliance upon the decision of the Delhi High Court in M/S INDIAN INSTITUTE OF AIRCRAFT ENGINEERING VERSUS UNION OF INDIA & ORS [2013 (5) TMI 592 - DELHI HIGH COURT] and the decision of the Tribunal in HINDUSTAN INSTITUTE OF AERONAUTICS VERSUS COMMR. OF C. EX., BHOPAL [2015 (2) TMI 140 - CESTAT NEW DELHI] in the own case of the appellant where it was held that 'An educational qualification recognized by law will not cease to be recognized by law merely because for practicing in the field to which the qualification relates, a further examination held by a body regulating that field of practice is to be taken.'
The Assistant Commissioner and the Commissioner (Appeals) were therefore, not justified in ignoring the order passed by the Tribunal in the own case of the appellant as also the order of the Delhi High Court in the case of the appellant.
In view of the decision of the Delhi High Court in Indian Institute of Aircraft Engineering and the Tribunal in Hindustan Institute of Aeronautics it is not possible to sustain the order dated 11.01.2017 passed by the Commissioner (Appeals) - It is, accordingly, set aside and the appeal is allowed.
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2024 (8) TMI 719
Pre-deposit for maintaining appeal - recovery of service tax with interest and penalty - HELD THAT:- The Hon’ble Supreme Court in the case of RAJ KUMAR SHIVHARE VERSUS ASSTT. DIRECTOR, DIRECTORATE OF ENFORCEMENT [2010 (4) TMI 432 - SUPREME COURT] while considering the scope of the provisions of Foreign Exchange Management (Adjudication Proceedings and Appeal) Rules, 2000 and Foreign Exchange Management Act, 1999 (FEMA”), in relation to an order passed in connection with an application for dispensation of pre-deposit of penalty and the right to prefer an appeal to the High Court in terms of Section 35 thereof, in paragraph 24 of such judgment was, inter alia, pleased to observe by taking note of the language used in Section 35 of FEMA that the word “any” in this context would mean “all” - the Hon’ble Supreme Court had opined that the said Section confers right of appeal to any person aggrieved and such a right to appeal is a right which has been conferred by the statute. Any decision passed, would be appealable under Section 35 of the FEMA and that the legislature has conferred such right to a person aggrieved from “any order” or “decision” of the Appellate Tribunal, though with certain limitations.
Taking note of Section 35G of the said Act, it would appear that an appeal shall lie to the High Court from “every order” passed in appeal by the Appellate Tribunal, though the maintainability thereof would be dependent on certain statutory limitations.
Thus, it cannot be said that the order passed by the Tribunal on 5th January, 2024 does not qualify as an order for preferring an appeal before the High Court, simply because the same does not seek to adjudicate the rights of the parties. It is a different question whether the High Court would admit the same having regard to the substantial questions of law involved. There are limitations imposed by the statute which are required to be followed. Such statutory limitations, do not make an appealable order, non appealable, especially when there is no limitation on the nature of order or the decision to be appealed against, as in this case.
The present writ petition ought not to be entertained on the ground of alternative remedy as also on the ground of lack of territorial jurisdiction - Allowing a petition of this nature would permit bypassing of statutory provision which is not ordinarily permissible.
Petition dismissed.
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2024 (8) TMI 718
Adjustment of short-payment of tax with excess payment - erroneous paid service tax on services exported to overseas clients, which the Department has accepted as refundable u/s 11B of the Central Excise Act, 1944 - recovery could be effected by invoking larger period of limitation or not.
Adjustment of outstanding inadmissible credit against excess payment of service tax - HELD THAT:- In the event, the assessee pays service tax in respect of a taxable service which is not paid by either wholly or partially for any reason, he may adjust the service tax so paid by him against the service tax liability for the subsequent period. Therefore, it is clear that the assessee is allowed to adjust service tax excess paid against the service tax liability for the subsequent period. Whereas in the present case, the appellant had erroneously availed cenvat credit of Rs.2,03,69,972/- and sought to adjust against service tax paid on export of services previously which cannot be considered as an adjustment of service tax relating to service tax liability for the subsequent period. However, it is found that erroneous availment of cenvat credit under Rule 3(5) of the Cenvat Credit Rules, 2004 could be recoverable only after insertion of the recovery provision to the said Rule by insertion of an Explanation through amending Notification No.3/2013-CE(NT) dated 01.03.2013 as amended only w.e.f. 01.03.2013.
Invocation of extended period of limitation - HELD THAT:- It is found that the Department was aware of the adjustment of the inadmissible cenvat credit against the excess service tax paid since February 2007 as communications have been exchanged between the appellant and Department resulting to payment of interest in March, 2009; and the show-cause notice was issued on 15.06.2009 i.e. after two years; thus invocation of extended period of limitation alleging suppression of fact cannot be sustained.
The impugned order is set aside and appeal is allowed.
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2024 (8) TMI 717
Classification of services - Supply of Tangible Goods Service or not - activity of allowing clients to use the rakes given to them by Railways for transportation of goods - time limitation.
HELD THAT:- The appellant has no control over the railway rakes supplied by them to the Indian Railways. Once the rakes are handed over to the Indian Railways, the Indian Railway are free to use the said rakes for any of their clients.The appellant was never getting the same rakes for transportation of goods by Rail for themselves or for their clients. Hence, the effective control and possession of the said rakes was not with the appellant once the rakes / wagons were handed over to the Indian Railways - The services received by the clients from Indian Railways is ‘Transportation of goods by Rail’ service. There was no supply of tangible goods service involved.
From the Clauses of the Agreement, it is observed that possession and effective control of the wagons. When the control and possession of the Railway Rakes were with the Indian Railway, question of Supply of Tangible Goods Service by the Appellant for use to their clients does not arise. Further, it is observed that the wagon/rakes were allotted by the Indian Railways to the Appellant under the Agreement from the "common pool" and it was not the same rakes/wagons supplied by the Appellant to the Indian Railways. Accordingly, the activity under taken by the appellant in the instant case cannot be considered as taxable service under the category of "supply of tangible goods services".
It is observed that in the case M/S. RASHTRIYA CHEMICALS & FERTILISERS LTD. VERSUS COMMISSIONER OF CENTRAL EXCISE SERVICE TAX (LTU) , MUMBAI [2024 (3) TMI 1341 - CESTAT MUMBAI], after analysing the agreement, which is almost similar to the agreement in the present case on hand, the Tribunal held that leasing out the wagons to Railways would not fall under the category of taxable service of ' Supply of Tangible goods'.
In the present case, the appellant did not have the effective control and possession of the rakes supplied by them to the Indian Railways and hence, they have not rendered any supply of tangible goods service to this effect.
Time Limitation - HELD THAT:- The dispute in the instant case relates to the period from 2008-09 to 2009-10 whereas the impugned Show Cause Notice was issued on dated 23-07-2012. The instant proceeding is initiated on the basis of Audit of Books of Accounts and scrutiny of Profit & Loss A/c. [Schedule XV (Other Income)] of the Appellant. No fresh material is brought by the Department to allege any suppression of facts with intention to evade the tax - the entire demand is barred by normal period of limitation of one year and hence the demands confirmed in the impugned order are liable to be set aside on the ground of limitation also.
The demands confirmed in the impugned order set aside on merits as well as on limitation - appeal allowed.
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2024 (8) TMI 716
Scope of SCN - demand of Service Tax has been confirmed under the category of “clearing and forwarding agents services” - the "cargo handling service‟ has been confirmed which is not the subject matter of the Show Cause Notice - HELD THAT:- As in this case, Show Cause Notice proposes to demand of Service Tax under the “Mining Service” which the Adjudicating Authority has held that the demand is not sustainable under Section 65105(zzzy) of the Finance Act, 1994 which means that the activity undertaken by the appellant does not fall under “Mining Services”. But the Adjudicating Authority has gone beyond the scope of the Show Cause Notice by holding that the activity undertaken by the appellants falls under Section 65(105)(zr) of the FA, 1994 which is beyond the scope of the Show Cause Notice.
Thus, demand proposed in the Show Cause Notice under “Mining Service” and confirmed under “Cargo Handling Service”. Therefore, the impugned order is not sustainable in the eyes of law which is beyond the scope of Show Cause Notice. Accordingly, impugned order is set aside.
Appeal allowed.
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2024 (8) TMI 660
Refund of service tax paid by the appellant under the category “works contract services” in respect of a composite contract involving the construction/laying down of drinking water supply pipeline awarded by Kerala Water Authority (KWA) - Applicability of Section 11B of the Central Excise Act, 1944 covering the periods 01 June 2007 to 30 September 2010 and 01 January 2011 to 31 October 2011 respectively - principles of unjust enrichment.
Whether the activity undertaken by the appellants for construction of distribution system of water supply for KWA is a taxable service under “Work Contract Service” in terms of Section 65(105)(zzzza) of the Finance Act, 1994, or not? - HELD THAT:- The Larger Bench of this Tribunal in the case of Lanco Infratech Limited [2015 (5) TMI 37 - CESTAT BANGALORE (LB)] held that the construction of canals/pipelines/conduits to support irrigation, water supply or for sewerage disposal, when provided to Government/Government undertakings would be for non-commercial, non-industrial purposes, even when executed under turnkey/EPC contractual mode and would fall within the ambit of clause (b), Explanation (ii) of Section 65(105)(zzzza); and would consequently not be exigible to Service Tax, in view of the exclusion enacted in clause (b).
Thus, the appellant is not liable to pay service tax for the activity undertaken by them for laying down the pipelines for Government/Government Undertakings for supply of water from KWA in Thiruvananthapuram City. In view of the this , we find that the appellant is not liable to pay service tax - there is no liability of the appellant to pay service tax in this case - issue is answered in favour of the appellant.
Whether the refund claims filed by the appellant of service tax paid, which was not payable by the appellant is hit by the provisions of Section 11B of the Central Excise Act, 1944, or not? - HELD THAT:- The Hon’ble High Court in the case of MDP Infra (India) Private Limited [2019 (2) TMI 208 - MADHYA PRADESH HIGH COURT] has examined the issue although the appellant was not liable to pay service tax, which was paid under mistake of law in terms of the Finance Bill, 2016. The appellant is required to file refund claim within a period of six months from the date on which the Finance Bill, 2016 receives the assent of the President - Admittedly, in the said case, the refund claim was filed beyond the time limit maintained under the Finance Bill, 2016, which is not the case in hand. Therefore, the decision of the case MDP Infra (India) Private Limited is not applicable to the facts and circumstances of this case.
Thus, the refund claims filed by the appellant, are not hit by the provisions of Section 11B of the Central Excise Act, 1944 as the service tax has been paid by the appellant under mistake of law. Therefore, the issue is also answered in favour of the appellant.
Whether the refund claims filed by the appellant are hit by bar of unjust enrichment or not? - HELD THAT:- From the letter dated 31.10.2011 issued by Tokyo Engineering Consultants Co.,Ltd., who are the consultant for KWA, it is clearly stated that as the service rendered by them is not a taxable service, therefore, the service recipient refused to pay service tax to the appellant, in that circumstances, it is held that the appellant has borne the service tax by themselves and have passed the bar of unjust enrichment. Accordingly, it is held that the refund claim filed by the appellant are not hit by the bar of unjust enrichment.
The appellants are entitled for refund claim - the adjudicating authority is directed to sanction the refund claim to the appellants within one months from the date of receipt of this order - appeal disposed off.
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2024 (8) TMI 659
CENVAT Credit - non-maintenance of separate records - common services used for providing taxable as well as exempt goods - Contravention of Rules 6(3) of the CENVAT Credit Rules, 2004 - HELD THAT:- The appellant is engaged in the activity of providing taxable services and also engaged in the manufacture of exempted goods. For providing outward taxable services, the appellant is availing CENVAT Credit on input services which were exclusively used for the taxable services and maintained separate accounts thereof. For inputs used in the manufacturing of exempted goods, the appellant is maintaining separate accounts and not availing any CENVAT Credit on the said inputs. There were certain common services which were availed by the appellant for providing taxable services as well as manufacturing exempted goods.
Services namely, security services, bank charges, AMC for fax machines/intercom systems, etc., are covered under Rule 6(5) of the CENVAT Credit Rules, 2004, on which the appellant is entitled to avail CENVAT Credit at 100%, although they were providing taxable output services and manufacturing exempted goods. Therefore, on the said services, no reversal is required by the appellant.
The appellant had utilized CENVAT Credit within 20% of payment of Service Tax during the financial years 2006-07 and 2007-08, in terms of Rule 6(3)(c) of the CENVAT Credit Rules, 2004. Therefore, the said CENVAT Credit cannot be denied to the appellant.
The proceedings against the appellant by way of the impugned Show Cause Notice are not sustainable - the impugned order is set aside - appeal allowed.
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2024 (8) TMI 658
Non-payment of service tax - Construction of Residential Complex Service - Works Contract Service - time limitation.
Whether the appellant is liable to pay service tax under the Construction of Residential Complex Services and Works Contract Service for the period from June 2007 to May 2008? - HELD THAT:- In the decision of M/s Krishna Homes [2014 (3) TMI 694 - CESTAT AHMEDABAD] the Tribunal had considered the Board Circular and held that the demand of service tax against a promoter, developer, builder cannot sustain for the period prior to 01.07.2010.
In the assessee's own case for the period subsequent to the disputed period the demand has been set aside following the decision in the case of M/s. Krishna homes [2014 (3) TMI 694 - CESTAT AHMEDABAD] observing that the assessee has provided services as a promoter/developer/builder - the demand of service tax cannot sustain.
The impugned order is set aside to the extend of confirming the demand of service tax and interest. The appeal filed by the assessee is allowed
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2024 (8) TMI 613
Rejection of declaration under Sabka Vishwas Legacy Dispute Resolution Scheme (SVLDRS) - rejection on the ground that as per respondents' records the tax dues had not been quantified before 30th June 2019 and hence, it is not covered under the investigation category - HELD THAT:- The amount payable has been quantified before 30th June 2019. In the circumstances, respondents shall constitute a Committee to decide the declaration that was filed by petitioner on 30th December 2019 and, on or before 30th September 2024, dispose the same in accordance with law.
The show cause notice dated 21st September 2021 issued to petitioner is also quashed and set aside. Accordingly, impugned orders dated 18th August 2021 and 31st March 2022 are also quashed and set aside. Consequently, the appeal filed by petitioner before the Central Excise Service Tax Appellate Tribunal (CESTAT) being Appeal No.86611 of 2022 filed on 4th July 2022 also stands disposed.
Petition disposed off.
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2024 (8) TMI 612
Requirement to deposit 7.5% of the duty amount as a pre-condition for preferring the appeal - primary reason for entertaining this Petition is on account of the lack of opportunity of hearing to the Petitioner in the case for determination of value of services and the service tax liability - HELD THAT:- The department delivered an order on 28.03.2024, which is assailed by the Petitioner. The total service tax including cess liability for the period October 2015 to March 2016 and for the financial year 2016 to 2017, was an amount of Rs.3,29,60,809/-. This Petition has been filed on 02.07.2024, which is after three months and one week. It is an admitted position that an appeal has to be filed before the CESTAT within 90 days from the date of the communication of the order. The parties concede that the Tribunal has the power to condone the delay beyond 90 days.
The ends of justice would be met by granting the Petitioner an opportunity to appear before the Principal Commissioner, Central GST and Central Excise, Nagpur-I, Commissionerate, for a re-hearing in the matter with relation to the show cause notice dated 21.04.2021. To balance the equities, it is deemed appropriate to direct the Petitioner to deposit 5% of the amount which is assessed towards service tax by the impugned order dated 28.03.2024.
Appeal allowed in part.
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