Service Tax Case Laws

MAGUS CONSTRUCTION PVT LTD Versus UNION OF INDIA - 2008 TMI - 4479 - HIGH COURT OF GAUHATI

Service Tax - Applicability of Service Tax on the business of development and sale of immovable properties, i.e., real estates - whether the appellant has been working, as a "service provider", for those persons with whom the petitioner-company enters into agreements and constructs flats for the purpose of sale to those with whom such agreements are entered into - HC held that department is binding by the circular issued by board. HC further held that, the activity in question is not subject to service tax.

M/s NAGARJUNA CONSTRUCTION CO. LTD Versus GOI and Others - 2008 TMI - 4478 - HIGH COURT OF ANDHRA PRADESH

Service Tax - Applicability of Service tax on Works Contract - Appellant sought to declare the circular no. 98/1/2008 St dated 4-1-2008 ultra virus the Finance Act, 1994. In the circular it is said that contracts executed prior to 1.6.2006 shall be taxable under the old respective categories. Appellant wants to pay tax on the works contract under the new provision 65(105)(zzzza) - HC has granted interim relief to the petitioner to pay service tax under new category subject to further orders.

M/s M P POWER TRANSMISSION CO LTD Versus CCE, BHOPAL - 2008 TMI - 4449 - CESTAT, Delhi

Service Tax - Applicability of Service Tax on services provided by private companies relating to generation, supply, distribution etc. on behalf of state power board (state governments, i.e. Madhya Pradesh Electricity Board) to the consumers - Demand was raised to the tune of Rs. 67,28,53,038/-. CESTAT has found that prima fascia the service is taxable under the category of "Business Support Service" and ordered to deposit Rs. 5 crore and stay granted for the balance demand from pre-deposit

M/s JET AIRWAYS (INDIA) LTD Versus CST, AHMEDABAD - 2008 TMI - 4448 - CESTAT, AHMEDABAD

Service Tax - "Cargo handling services" versus "Transport of goods by Air" - Transport of goods by air services brought into tax net with effect from 10-9-2004 without disturbing already existing entries relating to cargo handling services, demand raised for the period before 10-9-2004 is not sustainable and therefore tribunal set-aside the order-in-original

CCE, CHANDIGARH Versus M/s ROSHAN LAL RAVI DECORATORS - 2008 TMI - 4447 - CESTAT, Delhi

Service Tax - Exemption under notification no. 12/2003 - Value of goods and material if sold shall be exempted - since the notification did not specify any document, the CA certificate with the purchase bills are valid documents to allow exemption.

M/S NITYANANDA ELECTRONICS MANGALORE Versus CCE (APPEALS) MANGALORE - 2008 TMI - 4446 - CESTAT, BANGALORE

Service Tax - Appellant failed to pay service tax within the prescribed time limit, but the same before issuance of Show Cause Notice. Department levied penalty under section 76 and 77 but did not impose penalty under section 78. CESTAT has accepted the request of the appellant to waive the penalty by invoking the provisions of section 80. However, interest is required to be deposited.

SARLA POLYESTER LTD. Versus COMMISSIONER OF CENTRAL EXCISE, VAPI - 2008 TMI - 4436 - CESTAT, AHMEDABAD

Service Tax - Present appeal relates to the payment of education cess at the time of clearance in DTA - appellant’s contention that as Customs education cess stand paid by them at the time of import of the goods, further confirmation of education cess at the time of DTA clearance is not in accordance with the law, is not acceptable - fact that the customs education cess stands paid, will not alter the position – held that education cess is to be levied on all dues of excise, so assessee’s appeal rejected

TOTAL SECURITY SYSTEM Versus COMMISSIONER OF C. EX., & CUS., GOA - 2008 TMI - 4432 - CESTAT MUMBAI

Service Tax - Service as security agency to Port Trust – interest has been levied and penalty has been imposed on the ground that the service tax payable by the appellants was not paid within time – neither SCN nor the order of the adjudicating authority and lower appellate authority have confirmed any amount as service tax payable by the appellants – this is not legally sustainable to impose interest & penalty if demand is not confirmed – assessee’s appeal allowed

AKILA TEXTILES Versus COMMISSIONER OF CENTRAL EXCISE, COIMBATORE - 2008 TMI - 4431 - CESTAT CHENNAI

Service Tax - Demand of tax raised in SCN in respect of GTO service received by them during the period 16.11.97 to 2.6.98 was paid on 10.12.2002 – Commissioner was misconceiving the provisions of law in viewing that Finance Act, 2003 did not grant any extension of time for payment of service tax by recipients of GTO services for the aforesaid period – tax was paid within the period allowed by the Finance Act, 2003 as also that allowed by the SC in Gujarat Ambuja Cements case – penalty not justified

TAMILNADU PETROPRODUCTS LTD. Versus COMMR. OF C. EX., (ST), CHENNAI - 2008 TMI - 4430 - CESTAT CHENNAI

Service Tax - GTA service – tax paid for freight incurred prior to 1.1.05 – credit taken on 1.4.05 of the tax paid – whether interest & penalty are imposable for delay in reversing credit – lower authorities have held that the assessee’s availing credit on 1.4.05 of the tax paid was wrong and have demanded interest for the delay in reversing the same (on 29.3.06) – assessing authority approved the payment of tax relating to the half-year 2005, as correct – hence credit was rightly availed – appeal allowed

COMMISSIONER OF C. EX., JAIPUR-I Versus LAXMI TRADING CO. - 2008 TMI - 4429 - CESTAT, NEW DELHI

Service Tax - Contract for mining, loading, transporting and unloading of limestone from the mines to designated places of client – findings of the Commissioner (Appeals) that the loading is incidental to mining and transportation, appears reasonable – respondent cannot be considered as an agent in the context of rendering the service of cargo handling – demand raised to bring impugned services of loading under cargo handling services, is not sustainable – appeal is therefore, rejected

NARNOLIA SECURITIES PVT. LTD. Versus COMMR. OF SERVICE TAX, RANCHI - 2008 TMI - 4428 - CESTAT KOLKATA

Service Tax - Assessee paid Service Tax on behalf of four other Service Tax providers, but later on they came to know that those Tax providers themselves have separately paid the Tax – excess payment of tax – Appellants adjusted the amount of Rs. 92,000 paid in excess in Dec. 2004 while paying tax amount for the month of Feb. 2005 – Department should have advised the Appellants to claim a refund for excess amount – lenient consideration is called for to allow such an adjustment – appeal allowed

VBC EXPORTS LTD. Versus COMMR. OF C. EX., VISAKHAPATNAM - 2008 TMI - 4427 - CESTAT BANGALORE

Service Tax - Stevedoring, CHA, cargo handling services – held that handling of export cargo & stevedoring within port area are cargo handling services not port service – demand not sustainable because cargo handling services are outside the purview of service tax – in case of outsourcing of Cargo handling activity, appellant is laible to pay tax if sub-contractor has not paid it – tax paid @ Re. 1 per MT on CHA service but dept sought 15% - since assessee regularly filed tax returns, demand is time barred

COMMISSIONER OF C. EX., GOA Versus V. M. SALGAONKAR & BROS. PVT. LTD. - 2008 TMI - 4426 - CESTAT MUMBAI

Service Tax - Cenvat Credit Rules 6 (3) & 6 (5) – non maintenance of separate records of input services used for exempted & non-exempted services – revenue seeks to deny credit on the ground that the provisions of Rule 6 (3) (c) will be applicable – Rule 6(3) is not applicable to Rule 6(5) because Rule 6(5) stars with non-obstante clause ‘notwithstanding’ – it is undisputed that credit availed is on the service as mentioned in Rule 6(5), the credit of the entire/whole amount of service tax has to be allowed

JAY SECURITY SERVICES Versus COMMR. OF CUS., C. EX & SERVICE TAX, DAMAN - 2008 TMI - 4425 - CESTAT AHMEDABAD

Service Tax - Enhancement of penalty – in view of Extra-ordinary Taxpayer Friendly Scheme dated 20-9-2004, if the entire tax as regards the past service tax liability stands paid along with interest by 30-10-04, no penalty shall be imposable – plea of revenue that assessee is registered from 29/9/03 so Scheme date 20/4/04 is not applicable, is not acceptable – no justification for enhancement of penalty by commissioner in review order

RAAJ KHOSLA & CO. Versus COMMISSIONER OF CENTRAL EXCISE, NEW DELHI - 2008 TMI - 4424 - CESTAT NEW DELHI

Service Tax - Address of the firm as given in the invoice was different from address given in the registration certificate – contention of the Revenue is that no doubt the invoices were in the name of the appellant but the address is different, so credit is deniable - However, the address is different than the registration certificate. Subsequently, the registration certificate was got amended by the appellant & office address on the invoices were also included in R.C. - denial of credit is not sustainable

MARKET CHASE ADVERTISING Versus COMMR. OF C. EX., MADURAI - 2008 TMI - 4423 - CESTAT CHENNAI

Service Tax - Activity of preparation & erection of banners, traffic sign boards, centre median grills & barricades as required by traffic police – fabrication & erection of hoardings for display of advertisements of their private clients – In view of TN 345/4/97, impugned services are not taxable under Advertising Agency because conceptualisation, visualization & designing of advertisements are not undertaken – explanation given by appellants with regard to statement of proprietor is cogent – appeal allowed

NYPRO FORBES PRODUCTS LTD. Versus COMMR. OF SERVICE TAX, CHENNAI - 2008 TMI - 4422 - CESTAT, CHENNAI

Service Tax - Technical Collaboration Agreement to obtain technical know-how & assistance from foreign co. for setting up a plant in India - fee @ 5% of the net ex-factory sale price of the contract products, paid by assessee – Revenue failed to show that technical assistance would come within the scope of licences, rights, privileges – not exigible to service tax under ‘consulting engineer’s service’ – but it is covered by Intellectual Property Service on which tax was not leviable prior to Sept. 2004

RAJASTHAN TOURS PVT. LTD. Versus COMMISSIONER OF CENTRAL EXCISE, JAIPUR - 2008 TMI - 4421 - CESTAT NEW DELHI

Service Tax - Credit availed on mobile phones u/r 3(6) by Tour operator for period April to Sept. 2004 – held that, since CCR came into force w.e.f. 10.9.04 appellant could not be saddled with any liability in terms of CCR so penalty u/r 15 CCR is set aside – for the bills pertaining to period subsequent to 10.9.04 when the CCR came into force, matter requires verification by adjudicating authority – but penalty u/s 76 Finance Act is justified as credit is admissible only on telephone installed in premises

PRODEK LEKTRONICS Versus COMMR. OF C. EX., CHENNAI-II - 2008 TMI - 4420 - CESTAT, CHENNAI

Service Tax - Restoration of the appeal – notice of hearing of the appeal in the week commencing 24-12-2007 was available to the party – procedure of the Tribunal in vogue during those days was weekly listing of appeals, acknowledged by the applicants – As the party was aware that their appeal was figuring in the weekly list, they were expected to be present – circumstances are sufficiently indicative of the applicants negligence – applicants have failed to make out sufficient cause for restoration

Income Tax Case Laws

COMMISSIONER OF INCOME-TAX Versus FEDERAL BANK LTD. - 2008 TMI - 4452 - KERALA HIGH COURT
Income Tax - Assessee, banking Co. – interest on govt. securities - Merely because the assessee has declared it as amount receivable in the course of time, it does not mean that interest on income had in fact accrued to the assessee – only real income is assessable under the Act - Though interest due or receivable is assessable under the mercantile system, since the interest on securities involved in this case, was neither received nor receivable during the previous year, such interest cannot be assessed

DR. MISS CHANDRAWATI Versus COMMISSIONER OF INCOME-TAX - 2008 TMI - 4451 - ALLAHABAD HIGH COURT
Income Tax - Applicant claimed depreciation on building of nursing home @ of 20 %., the rate applicable to a hotel as nursing home is providing lodging to the patients – held that nursing home could not be treated as a hotel allowed the depreciation only @ of 10 % - Tribunal has declined to permit the applicant to raise the additional ground. The discretion exercised by the Tribunal cannot be said to be based on irrelevant material or consideration, hence question no. 1 doesn’t arise

MIDLAND RUBBER AND PRODUCE COMPANY LTD. Versus STATE OF KERALA - 2008 TMI - 4445 - KERALA HIGH COURT
Income Tax - Loss was occasioned to petitioner due to damage to the stock of rubber latex & a claim for insurance was made in Nov. 1992 – insurance amount was received during the period of A.Y. 1994-95 – in view of section 4(2)(ii), contention raised by the petitioner that the amount received as insurance claim could be related only to 1992-93 and not to the agricultural income of 1994-95 is liable to be rejected – contentions raised by the petitioner are devoid of merits & they are accordingly rejected

ALL GUJARAT FEDERATION OF TAX CONSULTANTS AND OTHERS Versus UOI AND OTHERS - 2008 TMI - 4444 - GUJARAT HIGH COURT
Income Tax - Petitioner has prayed that not.762(E) dated May 14, 2007, introducing new forms for the purpose of filing tax returns be quashed & petitioners be permitted to file returns in “Saral” form – assessee contended that new forms are complicated - about 6,77,330 taxpayers out of about 25 lakhs, have already filed their returns so it is difficult to accept the contention of petitioner – dept is directed to accept the return forms which are submitted by the taxpayers, subject to the genuine difficulty

AAN AAM PROP. Versus COMMISSIONER OF INCOME-TAX - 2008 TMI - 4388 - PUNJAB AND HARYANA HIGH COURT
Income Tax - On receipt of information that income in the form of investment in construction of building and installation of plant and machinery had escaped assessment, a notice was issued to the assessee on February 14, 1980 - filed return on November 3, 1984 – allegation of escapement of income was found correct – delay of 56 months in filing return after the notice u/s 148 – assessee even did not respond to SCN issued u/s 271(1)(a) - penalty under section 271(1) (a) is imposable

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