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Service Tax - Case Laws
Showing 1 to 20 of 29401 Records
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2024 (5) TMI 880 - SC ORDER
Classification of services - Cargo Handling Service - it was held by CESTAT that 'even according to the revenue, the services rendered by the appellant cannot be classified under Cargo handling Service. All these factors show that there was confusion on the part of the officers also as regards the correct scope of the services being provided by the appellant.' - HELD THAT:- Appeal dismissed.
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2024 (5) TMI 868 - CESTAT BANGALORE
Non-payment of service tax - Goods Transport Agency (GTA) services - Benefit of N/N. 32/2004/ST dated 03.12.2004 denied on the ground that the appellant failed to produce certificate from M/s. Devi Transports - HELD THAT:- As per the letter furnished by M/s. Devi Transporters, they have certified that they have not availed any credit under Cenvat Credit Rules for providing the Goods Transport Service to the appellant and no deduction is claimed for cost of goods used in the rendering services. Similarly as evidenced from letter issued by M/s. Ayoob & Co., they also have not availed any Cenvat Credit and no deduction was claimed for cost of goods used in rendering the services.
It is found that the claim of the appellant is that once the transporter had paid some amount of service tax, it can be adjusted towards the tax liability of the appellant. The issue was considered by the Tribunal in the matter NAVYUG ALLOYS PVT. LTD. VERSUS CCE & C, VADODARA-II [2008 (8) TMI 100 - CESTAT AHEMDABAD], where on similar facts and circumstances, the Tribunal held that once tax is already paid on the service, it is not open to the department to confirm the same against the appellant.
The appeal is allowed.
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2024 (5) TMI 860 - CESTAT NEW DELHI
Service or not - providing advisory/consultancy to M/s ACCSL and various other clients against receiving a commission from them - Business Auxiliary Service - intent to evade - Benefit of SSI exemption - extended period of limitation - penalty - HELD THAT:- The admitted activity of the appellant in the present case is providing advisory/consultancy to M/s ACCSL and various other clients against receiving a commission from them. Section 66D does not cover this activity. It becomes clear that the service rendered by the appellant is taxable service. The Notification No. 7/2003-ST dated 20.06.2003 as brought to our notice introduced levy of service tax on the commission received. Seen from both these angles it stands clear on record that the appellant was liable to pay service tax on the amount of commission received during the impugned period (2014-2015 to 2017-2018).
Benefit of SSI exemption - calculation of tax demand was objected by the appellant on the ground of benefit of N/N. 33/2012-ST dated 20.06.2012 granting SSI exemption, appropriate rate of service tax during the impugned period as the service tax rate has changed many times and eligibility of the appellant of cum tax benefit for calculation of proposed demands - HELD THAT:- It is observed that three of these contentions have duly been considered by the original adjudicating authority itself and the demand is confirmed for Rs. 12,96,358/- instead of Rs. 16,10,317/- as was proposed. There are no infirmity in the said order on three of the above quoted pleas as were taken by the appellant.
Extended period of limitation - HELD THAT:- The show cause notice in the present case was served on 11.11.2019 covering the period from April 2014 to June 2017. The time limit for issuing the show cause notice during the relevant period was 13 months from the relevant dates (the date of filing of return for the period April 2014 to September 2014) i.e. 14.11.2014. The impugned show cause notice has been issued after 30 months from 14.11.2014. The reason quoted for invoking extended period is that the appellant has deliberately intentionally not paid the service tax in lieu of providing advisory services - Failure to get themselves registered despite the said notification is held to positive act of the appellant proving its intention to not to discharge its tax liability and to evade the same - it is observed that the said non-payment had come to the notice of the department only subsequent to the impugned investigation. Hence, the extended period has rightly been invoked by the department while issuing the impugned show cause notice.
Penalty - HELD THAT:- There are no infirmity when the penalty has been imposed on the appellant.
The appeal is accordingly dismissed.
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2024 (5) TMI 847 - CESTAT CHANDIGARH
Non-payment of service tax - certain reimbursements made to the foreign entities for the services received under Reverse Charge Mechanism - Classification of services - Royalty paid by Baxter India to Baxter Healthcare Inc., USA - classifiable under 'Franchise Services' or under 'Intellectual Property Services'? - Non-payment of service tax on networking charges and technical services.
Non-payment of service tax - certain reimbursements made to the foreign entities for the services received under Reverse Charge Mechanism - HELD THAT:- The appellant is rendering services to their overseas entities. Though, the services are performed in India, the beneficiary of the services is abroad and the payment for the same is coming to the appellants along with the reimbursed expenses; therefore, in view of the Circular No.111/05/2009-ST dated February 04, 2009, the services qualify to be export of services in view of the Export of Service Rules as the service is used outside India.
The Tribunal has held similarly in the case of CCE & ST Vs Glaxo SmithKline Pvt. Ltd. [2023 (10) TMI 998 - CESTAT CHANDIGARH] and Arcelor Mittal Stainless India Pvt. Ltd. [2023 (8) TMI 107 - CESTAT MUMBAI-LB].
Classification of services - Royalty paid by Baxter India to Baxter Healthcare Inc., USA - classifiable under 'Franchise Services' or under 'Intellectual Property Services'? - HELD THAT:- The activity of the appellants as seen from the Agreement is not in the nature of Management Consultancy Services; though, at some places, the word “Advice” is used; on going through the terms of the Agreement, it will be clear that this is in the nature of giving or passing on of information rather than giving a management advice. It is found that the appellants are providing various information which is available in India to M/s Baxter, Singapore. The contentions of the appellants are correct. Moreover, as contended by the appellant, classification of service does not matter as long as they are exported. There is no such averment on the part of the Revenue that the services are not exported - It is clear from the Agreement that it is a license to use the ‘Intellectual Property Rights’ but not a ‘Franchise Agreement’. There is no mention of grant of Representational Right so as to fall under the category of ‘Franchise’. Therefore, the Department has not made out any on this issue also.
Non-payment of service tax on networking charges and technical services - HELD THAT:- The appellant submits that service tax on the Reverse Charge Mechanism is not payable prior to 18.04.2006. It is found that the submission is acceptable as per the ratio of the judgment in Indian National Ship Owner’s Association and CST Delhi v. Sojitz Corporation [2022 (11) TMI 48 - SUPREME COURT]. Similarly, the appellant’s plea on the non-payment of service tax on reimbursement made by the appellant for certain receipt of services is acceptable. The appellant submits that these services are performance-based services and are performed outside India; the expenditure incurred by them in holding medical conferences abroad and attended by Indian doctors is reimbursed by their overseas entities - the learned Commissioner takes a long-drawn argument that the doctors after attending the conference come back to India and products whose quality has been tested abroad by the doctors are sold in India and therefore the same should form part of the assessable value. This conclusion is not agreed upon for the reason that service tax is not on expenses but is on that portion of the expenses which are paid for the services received.
The impugned order is not sustainable - appeal allowed.
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2024 (5) TMI 832 - CESTAT MUMBAI
Non-payment of service - Liability of service tax on ship crew recruitment services - export of service - intermediary services - place of provision rules - fees received for services rendered to ESM situated in Singapore, where payment is received in foreign currency - Rule 2(f) and Rule 9(c) of the Place of Provision of Service Rules, 2012 - extended period of limitation - HELD THAT:- The definition of taxable services under the category of ‘Ship Management Service’ defined under Section 65(96a) ibid included various activities including engagement or providing of ship crew. Further, such ship management service was covered specifically under the taxable clause (zzzt) of Section 65(105) ibid. Thus, it clearly flows from the above legal provision that the service of ship crew recruitment provided by the appellants to any person in the taxable territory are subjected to levy of service tax. Inasmuch as the Chapter V of the Finance Act, 1994 extends to the whole of India except the State of Jammu and Kashmir, it transpires as a corollary that services provided outside India are not liable for payment of service tax - the activities undertaken by the appellants in provision of ship crew management/ship management service to ESM Pte., Singapore as explained above does not get covered under the tax net of service tax.
The appellants had entered into a ‘Services Agreement ’dated 01.04.2013 with ESM Pte. Singapore for providing certain agreed services, as detailed in Appendix-I of this agreement. This contract covered the period from 01.04.2013 to 31.03.2016. Further, contract dated 01.04.2016 entered between the appellants and ESM Pte. Singapore, was of similarly worded but covered the period from 01.04.2016. For providing such services, the appellants are being paid an amount equal to ‘applicable costs’ i.e., direct and indirect operating expenses of the appellants incurred in connection with providing the services, plus 8.70% (upto 31.03.2016) and 6.50% (from 01.04.2016) along with applicable taxes, if any.
From plain reading of the legal provisions relating to ‘Place of Provision of Services Rules, 2012’ it clearly transpires that the place of provision of service in general has been specified under Rule 3 ibid, and in specific situations such as place of provision of performance-based services, provision of services relating to immovable property, provision of services relating to events, services provided at more than one location, services where provider and recipient are located in the taxable territory, provision of certain specified services have been specifically categorized and the place of provision in such cases have been given in the respective Rules 4, 5, 6, 7, 8 and 9 ibid respectively - since the services are provided in recruitment of ship crew and enabling them for the ocean voyage to be performed as per the directions of the service receiver ESM Pte., Singapore, which is situated out of ‘taxable territory’, the services provided by the appellant cannot be covered under the service tax net in terms of Section 66B ibid.
There is no evidence on record to show that the appellants are receiving any consideration from the Ship/Vessel owners or any other person and as such, the services could not be termed as falling under the category of “intermediary”.
Whether the services provided by the appellants could be treated as export of service or not? - HELD THAT:- The appellants cannot not be said to be acting as an intermediary i.e., the services were performed by the appellants on a principal-to-principal basis and at arm’s length basis. Inasmuch as all the conditions prescribed under Rule 6A of the Service Tax Rules, 1994 are satisfied, the services of the appellants are to be treated as export of services. Thus, the findings given by the learned Commissioner in the impugned order on this ground is also not sustainable.
Extended period of limitation - HELD THAT:- There are no specific grounds invoked for suppression of facts or willful mis-statement on the part of the appellants, particularly when the entire records of the appellants including periodical returns filed were available with the department. Thus, no effective case was made out in the SCN for invocation of extended period and for sustaining the same in the impugned order. Therefore, such order confirming the adjudged demands for extended period is patently illegal and therefore not sustainable, on the grounds of limitation.
The Tribunal in the case of EASTERN PACIFIC SHIPPING (INDIA) P. LTD. VERSUS COMMR. OF CGST, MUMBAI EAST [2019 (10) TMI 1324 - CESTAT MUMBAI] has held that appellant, a duly licensed Seafarer Recruitment service provider, as per agreement is not an intermediary particularly when entire process of selection, medical test, insurance, transportation etc. are carried out by him, for which he received payment in convertible foreign exchange from first party having its office in Singapore. It was held that services provided by him are to be considered as export of service.
In the case of Ernst and Young Limited [2023 (3) TMI 1117 - DELHI HIGH COURT], the Hon’ble High Court of Delhi had examined the scope of the term ‘intermediary’ and held that the services provided by the appellants cannot be considered as intermediary services and it would fall within the scope of the definition of ‘export of service’.
In another case relating to supply of services to foreign vendors in the case of SNQS International Socks Private Limited (Trading Division) Vs. Commissioner of Central Excise and Service Tax [2023 (6) TMI 1084 - CESTAT CHENNAI], the Tribunal has held that the services provided are in the nature of specified taxable services and not ‘intermediary service’ and the place of provision in such export of services is the location of the service provider abroad.
The impugned order is set aside - appeal allowed.
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2024 (5) TMI 824 - CESTAT AHMEDABAD
Exemption from service tax - services of laying, terrazzo flooring, Polishing and PVC Joint Strips to TATA Consultancy Ltd SEZ Park Pune - exemption was denied only for the reason that the Authorization (Form A2 ) bears the wrong address of Bangalore of the appellant - wrong address mentioned and afterwards was rectified - HELD THAT:- The undisputed fact is that the said Form A2 has been rectified and accordingly, the correct address of the appellant was mentioned in the Form A2. Therefore, after rectification it is as if the correct address has always been there in A2 Form, moreover, if at all there is lapse, it is an inadvertent mistake in the form which was duly rectified. For this small lapse substantial benefit of Notification No. 12/2013 cannot be denied.
This Tribunal time and again held that the services received in SEZ is otherwise exempted as per Section 26 (1e) of SEZ Act, 2005 itself and in terms of Section 51 thereof has overriding effect over any other law for time being in force, therefore, in view of the SEZ Act itself no service tax is leviable on the services received in SEZ - The present case is on much better footing that by rectifying the mistake in A2 Form, the condition of the Notification No 12/2013 has been correctly complied with. The appellant are indeed entitled for the exemption Notification No. 12/2013-ST.
The impugned order is not sustainable, hence, the same is set aside - Appeal is allowed.
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2024 (5) TMI 816 - CESTAT AHMEDABAD
Valuation of service - calculation of service tax - value of free housing/ accommodation facility provided by the appellant to the CISF personnel should be treated as additional consideration flowing to CISF and the value of such facilities need to be included in the service value or not - HELD THAT:- The matter is no longer res Integra as this Tribunal in case of M/s. CISF V/s. Commissioner of Central Excise and Service Tax, Rajkot [2024 (4) TMI 391 - CESTAT AHMEDABAD] has already decided the issue at hand in favour of the appellant.
The impugned Order-In-Appeal is without any merit and the same aside - appeal allowed.
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2024 (5) TMI 809 - CESTAT AHMEDABAD
Non-payment of Service Tax on various services provided - providing manpower supply and recruitment agency service to various parties - no proper findings given by Adjudicating Authority - violation of principles of natural justice - HELD THAT:- It is found that while confirming the service tax demand the Adjudicating Authority has not indicated any work order to prove that the activity undertaken by the appellant is in fact that of supply of manpower and recruitment agency service while the appellant is claiming that they were engaged by various parties for completion of the various job works and construction of road etc. - The Adjudicating Authority has not given his finding whether the appellant has been providing the services in the SEZ area or not or whether they are entitled for the exemption from payment of Service Tax for the services provided by them to SEZ developer or SEZ unit.
The Adjudicating Authority should give a fresh opportunity of hearing including the opportunity of presenting all the relevant papers/documents/evidences to the appellant and re-decide the matter afresh.
The appeal is allowed by way of remand.
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2024 (5) TMI 807 - CESTAT KOLKATA
Liability of appellant, as a sub-contractor, to pay Service Tax when the main contractor has paid Service Tax on the services rendered - Consulting Engineer Service - services of supervision, coordination and monitoring in respect of engineering and technical works under the Yamuna Action Plan Project - extended period of limitation - penalty - HELD THAT:- The appellant has rendered the services to M/s. Tokyo Engineer Consultants Co. Ltd. as a sub-contractor. It is on record that the main contractor has paid Service Tax on the entire bill amount. However, it is observed that the Board has issued the Circular dated 23.08.2007 wherein it has been clarified that a sub-contractor is liable to pay Service Tax separately even if the main contractor discharges Service Tax on the entire amount. Accordingly, the appellant is liable to pay Service Tax on the services rendered by them as a sub-contractor.
Invocation of the extended period of limitation - HELD THAT:- The appellant cannot be faulted for not paying Service Tax for the period prior to the issue of the clarification by the Board. Further, the entire issue was within the knowledge of the Department and there is no evidence brought on record to establish suppression of facts with intention to evade payment of tax on the part of the appellant. Accordingly, the extended period of limitation cannot be invoked to demand duty in this case.
In the case of M/S SHREE RANIE GUMS & CHEMICALS PVT. LTD., M/S JAINSONS (INDIA) INDUSTRIES, M/S BASANT, M/S SATYAM ENTERPRISES (UNIT I) AND M/S SHREE RAM GUM CHEMICALS LTD. VERSUS CCE, JAIPUR-II [2017 (5) TMI 1303 - CESTAT NEW DELHI], this Tribunal has held that the demand raised by invoking the extended period includes normal period of limitation within it. Thus, when it is held that the extended period of limitation is not invokable, the demand for the normal period of limitation survives.
Penalty - HELD THAT:- It is observed that no suppression of facts with intention to evade payment of Service Tax exists in this case. Hence, in the facts and circumstances of the present case, no penalty is imposable on the appellant.
The demand of service tax for the extended period of limitation is set aside. The demand, if any, for the normal period of limitation, is confirmed along with interest - No penalty is imposable on the appellant - appeal disposed off.
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2024 (5) TMI 803 - CESTAT KOLKATA
Reversal of CENVAT Credit - units sold after the Completion Certificate (CC) - exempt services or not - scope of SCN - HELD THAT:- The Grounds taken by the Revenue before the Commissioner (Appeals) is not known since neither side has filed the copy of the Revenue’s Review Order Order and Grounds taken by the Revenue. The Commissioner (Appeals) has passed the Order to the effect that the Appellant is not eligible to take full Cenvat Credit since they were also providing exempted service in the form of sale of units after the issuance of Completion Certificate. He has also dealt with the issue as to whether the Appellant can take the benefit of Cenvat Credit as well as abatement when they are following the procedure given under Notification No. 1/2006-St as amended from time to time. As to whether the Commissioner (Appeals) has traversed beyond the scope of SCN can be seen only after going through the Department’s Grounds before him are considered, which presently is not available to the Bench.
Since the Show Cause Notice addressed several issues about the credit taken, return shown in the ST-3 etc., it would be important to get these facts verified. In the absence of all the documents being placed before the Bench, it would not be fair to come to conclusion at this juncture. Accordingly, in the interest of justice, the matter is remanded to the Adjudicating Authority to get all the documentary evidence including the Audit Report, Grounds taken by Revenue before the Commissioner (Appeals), properly verified and pass a considered decision.
Matter on remand.
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2024 (5) TMI 795 - CESTAT NEW DELHI
CENVAT Credit - exempt service or not - amount of interest received by the appellant on the delayed payment of the amount of consideration received from the sale of flats/villas/shops - HELD THAT:- The penal interest clauses in the agreement are in the nature of providing a safeguard to the commercial interest of the contracting parties. Accordingly, in the present case, the interest amount received by the appellant is in form of compensation towards the loss suffered by the appellant due to such delayed payments on the part of the customers. Therefore, the subject amount of interest received by the appellant are merely flow of money to deter such acts and cannot be regarded as a consideration for any activity undertaken by it. Thus it is clear that appellant is rendering only one taxable service i.e. of Construction.
No question arises for invoking Rule 6(1)(3) of Cenvat Credit Rules, 2004. Consequently, the appellant is not liable to make reversal of Cenvat Credit in respect of receipt of interest as per new Explanation 3 to Rule 6(1) of Cenvat Credit Rules.
The impugned show cause notice has been issued based on a frivolous ground. Hence the same is held void. The findings arising out of such show cause notice are not sustainable. The order under challenge is therefore set aside - Appeal allowed.
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2024 (5) TMI 780 - CESTAT CHANDIGARH
Interest on delayed refund - it is submitted that interest on refund is required to be paid from 03 months of the date of application and that interest on belated refund is a statutory mandate of law - Business Auxiliary services - export of services - HELD THAT:- The issue is squarely covered being decided by the Tribunal in the case M/S. MICROSOFT CORPORATION (I) (P) LTD. VERSUS CST. NEW DELHI [2014 (10) TMI 200 - CESTAT NEW DELHI (LB)] where it was referred to third Member. The third Member has observed Having held that services involved were export of services, the same are not liable to be sustained against the appellants.
The services rendered by the appellant to the overseas entity i.e M/s Microsoft, Singapore qualify to be exports and for that reason, the issue stands decided in favour of the appellants. As far as the grant of interest is concerned, the submissions of the the appellant agreed upon that the provision of interest are automatic and the appellants are entitled to payment of interest, at the rate prescribed statutorily from time to time, on the refunds which are delayed beyond the statutory period of three months.
Appeal allowed.
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2024 (5) TMI 777 - CESTAT AHMEDABAD
Levy of service tax - Sale of Bought-Out Spares - contracts with a lifetime spares supply mandate - rendering service under the category of "Business Auxiliary Service" or not - act of selling/supplying bought out goods(spares) by the Appellant for their buyers, while selling drilling rigs and ancillary equipment produced by them - principal agent relationship or not - HELD THAT:- In the instant case supplies were made on Principal to Principal’ basis. There is nothing on record to show that any commission was being paid or the transaction were purely on commission basis without title to the goods undergoing a change like in case of intermediary services. These were purchased by the appellant in their name from the spare parts market and same were in turn sold of to their customers purely as obligatory facilitation measure without any charge for such facilitation. There was no existence of agency relationship between them and their buyer. A simple requisition by the customer of the spare parts as may be required by them and delivering the same by them was as per contractual requirement or warranty obligation by the appellant. It would not tend to bring the transaction within the ambit of ‘Business Auxiliary Service’.
As sale and purchase of goods was involved without any element of commission and the transaction was not on ‘Principal to Agent’ basis. The goods sold will not come within the ambit of service even in the post negative list period - the impugned transactions were in the nature of sale and not within the ambit of any services, simply because the goods were supplied on ‘Principal to Principal’ basis, but as per pre-existing stipulation of facilitation at the time of sale of rigs to prospective customers.
The impugned order is liable to be set aside. Appeal is allowed.
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2024 (5) TMI 770 - CESTAT CHENNAI
Levy of service tax - Business Auxiliary Services - margin / discount / commission received by the appellant for sale of SIM cards - HELD THAT:- The very same issue was considered by the Tribunal in the case of M/S. PATWARI ELECTRICALS VERSUS COMMISSIONER OF CENTRAL EXCISE, CUSTOMS & SERVICE TAX, AURANGABAD [2016 (5) TMI 845 - CESTAT MUMBAI] and it was held by the Tribunal that it was mere purchase and sale of SIM cards and the amount earned by the appellant cannot be subject to levy of service tax under Business Auxiliary Services.
The Tribunal in the case of MESSRS HARI OM MARKETING VERSUS C.C.E. & S.T. -VADODARA-I [2023 (6) TMI 998 - CESTAT AHMEDABAD] had considered the very same issue and followed the decision in the case of M/S. PATWARI ELECTRICALS VERSUS COMMISSIONER OF CENTRAL EXCISE, CUSTOMS & SERVICE TAX, AURANGABAD [2016 (5) TMI 845 - CESTAT MUMBAI]. So also, it was observed that the High Court of Aurangabad in the case of COMMISSIONER CENTRAL EXCISE, LUCKNOW VERSUS M/S CHOTEY LAL RADHEY SHYAM [2017 (9) TMI 509 - ALLAHABAD HIGH COURT] had set aside the demand upholding the view taken by the Tribunal.
The demand cannot sustain. In the result, the impugned order is set aside. The appeal is allowed.
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2024 (5) TMI 768 - CESTAT AHMEDABAD
Liability to pay Service Tax, when Central Excise duty / Sales Tax had been paid on the gross value of the purchase order for crane, including Erection/commissioning charges and transport etc. - Composite contract - decisions not examined because of non-availability of decisions at the time of passing of order - HELD THAT:- This is the matter is old and benefit of COMMISSIONER, CENTRAL EXCISE & CUSTOMS VERSUS M/S LARSEN & TOUBRO LTD. AND OTHERS [2015 (8) TMI 749 - SUPREME COURT] as well as VISHWANATH PROJECTS LIMITED VERSUS COMMISSIONER OF SERVICE TAX, HYDERABAD [2019 (11) TMI 675 - CESTAT HYDERABAD] by the appellant was not available to the Appellate Authority. The matter deserves therefore to be remitted back to the Appellate Authority to examine and comment on applicability of various case law which are now available as also the nature of contract and whether same were divisible or composite. Appellant shall be free to advance its arguments and Appellate Authority shall consider the case law (including since the time of settling of position by the Apex Court through L & T case and its applicability) as also if contract conditions indicate a composite contract. While considering limitation, it will also consider the arguments, if any, put forth by the appellants.
Appeal is allowed by way of remand.
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2024 (5) TMI 760 - CESTAT CHENNAI
Demand of Interest - appellant has paid the service tax from July 2010 onwards though belatedly - construction of residential complex and sale thereon - period from April 2009 to June 2010 - HELD THAT:- The Board vide circular No.108/02/2009 dt. 29.1.2009 has clarified that a builder/promoter/developer is not liable to pay service tax prior to 1.7.2010.
The said issue has been decided by the Tribunal in the case of Krishna Homes [2014 (3) TMI 694 - CESTAT AHMEDABAD]. In the said case, the Tribunal has applied Board’s circular and discussed the very same issue after taking note of the Explanation introduced in Section 65 (105) (zzzh) of the Finance Act, 1994. The Board has specifically stated that developer/builder/promoter would be liable to pay service tax only after 1.7.2010.
The demand of service tax for the period prior to July 2010 cannot sustain and requires to be set aside - For the period after July 2010 to March 2011 the appellant has paid the service tax though belatedly the impugned order has confirmed the demand of interest for the said period. The appellant is liable to pay the same.
The impugned order is set aside to the extent of demand of service tax, interest thereon and penalties for the period upto 1.7.2010 - the interest demand confirmed for the period after 1.7.2010 not disturbed - appeal allowed in part.
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2024 (5) TMI 751 - DELHI HIGH COURT
Dismissal of application for restoration of the statutory appeal along with costs - CESTAT could not be informed of the deposit having been made - HELD THAT:- Undisputedly the direction for affecting pre-deposits had been duly complied with albeit with a delay of 9 days. The writ petitioner should have consequently been candid enough to admit to the aforesaid facts while moving the CESTAT for restoration.
However, and bearing in mind the larger interest of justice, it is opined that the appeal itself may be restored on the Board of the CESTAT bearing in mind the undisputed position that the condition of pre-deposit has been duly complied with.
The impugned order dated 18 April 2024 in so far as it proceeds to reject the application for restoration is set aside - petition allowed.
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2024 (5) TMI 738 - CESTAT AHMEDABAD
Exemption from service tax - service provided to non- Government Organization which are not engaged in any commercial activities - construction of staff quarters by the appellants/respondents for M/s. Gujarat State Police Housing cooperation Limited - HELD THAT:- This issue has already been decided by this Tribunal in case of RD CONTRACTOR & COMPANY VERSUS COMMISSIONER OF CENTRAL EXCISE & ST, ANAND (VICE-VERSA) [2023 (2) TMI 946 - CESTAT AHMEDABAD] where it was held that 'This very issue pertains to Gujarat State Police Housing Corporation Limited has been considered by this Tribunal in SHRI S. KADIRVEL VERSUS CCE & ST, TRICHY [2018 (6) TMI 926 - CESTAT CHENNAI] where it was held that The definition of residential complex specifically excludes construction undertaken for personal use and such personal use includes permitting the complex for use as residence by another person. The exclusion clause covers the construction activity undertaken by the assessee.'
The impugned order is not sustainable - appeal allowed.
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2024 (5) TMI 723 - CESTAT MUMBAI
Levy of service tax - Business Auxiliary Service - freight margin recovered by the noticee from their customers - intermediary services or not - place of provision of services - invocation of extended period of limitation - HELD THAT:- From plain reading of the legal provisions relating to ‘Place of Provision of Services Rules, 2012’ it clearly transpires that the place of provision of service in general has been specified under Rule 3 ibid, and in specific situations such as place of provision of performance-based services, provision of services relating to immovable property, provision of services relating to events, services provided at more than one location, services where provider and recipient are located in the taxable territory, provision of certain specified services have been specifically categorized and the place of provision in such cases have been given in the respective Rules 4, 5, 6, 7, 8 and 9 ibid respectively.
As regards the place of provision for goods transportation services, other than by way of mail or courier, it is specifically stated as the ‘place of destination of the goods’ under Rule 10 ibid. Considering the above legal provisions, in the present case, it is found that since the services are provided in respect of transportation of export goods, on the ocean voyage for delivery at the port of destination abroad, which is out of ‘taxable territory’, the services provided by the appellant cannot be covered under the service tax net, in the post negative list regime after 01.07.2012 also in terms of Section 66B ibid.
Further, the findings given in the impugned order for rejecting application of Rule 10 ibid is on the ground that Rule 8 shall apply in the present case, as both service provider and recipient of the service are located in the taxable territory. In this regard it is found that, Rule 14 ibid specifically state thatnotwithstanding anything stated in any rule,where the provision of a service is, prima facie, determinable in terms of more than one rule, it shall be determined in accordance with the rule that occurs later among the rules that merit equal consideration. Thus, in terms of non-obstante clause which grants superimposing authority to Rule 14 ibid over the provisions of other rules, in terms of the rule that occurs later would be applied and accordingly Rule 10 ibid is the correct one to be applied in the present case.
The issue of service tax liability in respect of freight charges of cargo/container space has already been dealt in elaborately by the Tribunal in the case of GREENWICH MERIDIAN LOGISTICS (INDIA) PVT. LTD. VERSUS COMMISSIONER OF SERVICE TAX MUMBAI [2016 (4) TMI 547 - CESTAT MUMBAI] holding that the service tax is not applicable on such freight element.
The impugned order dated 05.04.2019 with regard to confirmation of adjudged service tax demands along with interest and penalties are not sustainable - Appeal allowed.
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2024 (5) TMI 672 - CESTAT AHMEDABAD
Levy of Service tax - Clearing and Forwarding Agent Service - place of provision of services - difference in expenses which has been incurred by the appellant - Department observed that freight income as being expenses incurred towards freight expenses were less than freight charged by the appellant from their customers - post negative period of service tax - HELD THAT:- The appellant would enter into an agreement with the carrier for transportation of cargo i.e. airline/shipping line. This service agreement would be on principal to principal basis and not as agent of said airline/shipping line. Therefore, applicant would be covered by the exclusion clause i.e. provides the main service- inbound and outbound shipment on his own account in terms of Rule 2(f) of POP Rules and thus not covered under Rule 9 (c) ibid as "intermediary" service. Therefore, place of provision of said service will not be location of service provider.
Rule 10 of POP Rules will not be applicable in respect of the applicant. Applicant submits that said Rule 10 is wide to cover not only the actual transportation, but also a person who arranges for the transport, that this is expressly clear from the exclusion to mail or courier from Rule 10 of POP Rules; that proviso to Rule 10 suggests the place of provision of service in respect of goods transport agency (GTA); that but for said exclusion, courier or GTA would be covered by said Rule 10.
It is reiterated that place of provision of service of transportation of goods shall be the place of destination of the goods, as per Rule 10 of POP Rules. In the case of outbound shipment, both by aircraft and vessel, destination of goods shall be outside India. Therefore, place of provision of service of outbound shipment shall be outside India, hence there will be no Service Tax on freight margin recovered by the applicant from the customer.
The impugned order-in-appeal is without any merits and is set aside - appeal allowed.
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