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kosom ammar
STO 2011 AP 1143
[Date of Order: 2011-11-08]

Limitation: When the limitation period under Section 73(1) of the Act has expired and when the case does not fall under the proviso thereto, the question of penalty proceedings would not arise. In this case as the Tribunal found, the initiation proceedings were beyond the period of limitation and whether or not penalty proceedings were dropped is immaterial.

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CEO 2011 AP 552
[Date of Order: 2011-11-08]
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CEO 2011 Bom 620
[Date of Order: 2011-11-08]
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CEO 2011 Kar 611
[Date of Order: 2011-11-02]
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STO 2011 AP 1141
[Date of Order: 2011-10-19]

Service Tax: “Commercial training or coaching” for the years 2003-04 to 2005-06: Demand: Non-compliance to pre-deposit under Section 35F: Financial hardship: Scope: In view of the explanation to Section 65(105)(zzc), the expression ‘commercial training or coaching centre’ occurring in this sub-clause and in clauses (26), (27) and (90a) shall include any centre or institute, by whatever name called, where training or coaching is imparted for consideration, whether or not such centre or institute is registered as a trust or a society or similar other organisation under any law for the time being in force and carrying on its activity with or without profit motive and the expression ‘commercial training or coaching centre’ shall be construed accordingly. Having carefully considered the competing interests of the Revenue and the hardship that is likely to be caused to the respondent/assessee in case the entire amount of service tax and penalty as determined by the Primary Authority is directed to be deposited, the respondent shall deposit 1/3rd of the amount of service tax and penalty, as pre-deposit under Section 35F of the 1944 Act in its appeal preferred under Section 86 of the Service Tax Act.(Para 10,11).

Appeal allowed.

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STO 2011 Kar 1161
[Date of Order: 2011-10-15]

Service Tax: Penalty under Section 76,78: Scope: Once the appellant has registered himself, filed returns, aware of the liability under the Act, the returns which he filed did not truly represent the facts which constituted a willful mistake Sub-Section 4 of Section 73 expressly provides the benefit of sub-Section 3 of Section 73 is not attracted to a case falling under sub-Section 4. Therefore, the contention of the assessee that he is not liable to pay penalty as he has paid the differential duty with interest before issue of show cause notice is unsustainable. It is now well settled that the liability cannot be imposed both under Section 76 and 78. Therefore, in this case the liability to pay penalty is only under Section 78. In fact the proviso to Section 78 makes it very clear that if penalty is payable under this Section, the proviso to Section 76 shall not apply. Therefore, in this case the penalty is to be construed under Section 78. To that extent the appeal succeeds.(Para 5,6).

Appeal disposed off.

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STO 2011 Kar 1092
[Date of Order: 2011-10-15]

Service Tax: Penalty under Section 76 and 78: HELD -When the authorities computed the tax payable with interest and intimated him, promptly he has paid the said amount. However, the reason for nonpayment of tax was non-receipt of the subscription from the subscribers, he has not produced any material. It is because he has not maintained any records. Not maintaining records cannot constitute a sufficient cause under Section 18 to avoid the liability to pay penalty. Therefore, once he has registered himself, filed returns, aware of the liability under the Act, the returns which he filed did not truly represent the facts which constituted a willful mistake. Sub-Section 4 of Section 73 expressly provides the benefit of sub-Section 3 of Section 73 is not attracted to a case falling under sub-Section 4. At the same time it is now well settled that the liability cannot be imposed both under Section 76 and 78. Therefore, in this case the liability to pay penalty is only under Section 78. In fact the proviso to Section 78 makes it very clear that if penalty is payable under this Section, the proviso to Section 76 shall not apply. Thereby no penalty could be imposed both under Sections 76 as well as 78. This statutory provision has been ignored both the Assessing Authority as well as by the Tribunal.(Para 5).Admittedly, in the instant case the differential duty and the interest payable thereon has been paid even before the institution of the proceedings i.e., prior to show cause notice itself. Therefore, as the payment is made even anterior to the date of the order the liability payable is to be restricted to only 25%.(Para 6). Appeal is partly allowed.

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STO 2011 P&H 821
[Date of Order: 2011-09-28]

Cenvat Credit: Input Service: Transportation of employees: Judicial discipline: Argument that department has filed appeal against Bombay High Court judgment in the case of Coca Cola not a good argument: Credit admissible. 

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STO 2011 Del 468
[Date of Order: 2011-09-23]

Service Tax: Renting of Immovable Property Service: Constitutional Validity: Imposition of service tax under Section 65(105)(zzzz) read with Section 66 is not a tax on land and building which is under Entry 49 of List II. What is being taxed is an activity, and the activity denotes the letting or leasing with a purpose, and the purpose is fundamentally for commercial or business purpose and its furtherance. The concept has to be read in conjunction. Service tax is associated with value addition as evolved by the judgments of the Apex Court, the submission that the base of the said decisions cannot be taken away by a statutory amendment need not be adverted to. Once there is a value addition and the element of service is involved, in conceptual essentiality, service tax gets attracted and the impost gets out of the purview of Entry 49 of List II of the Seventh Schedule of the Constitution and falls under the residuary entry, that is, Entry 97 of List I. The provisions, namely, Section 65(105)(zzzz) and Section 66 of the Finance Act, 1994 and as amended by the Finance Act, 2010, are intra vires the Constitution of India. (para 69,75)

Service Tax: Renting of Immovable Property Service: Decision of Division Bench overruled: The first Home Solution case does not lay down the law correctly inasmuch as in the said decision, it has been categorically laid down that even if a building/land is let out for commercial or business purposes, there is no value addition. Being of this view, the said decision is overruled. (para 70)

Service Tax: Renting of Immovable Property Service : Renting involves value addition: The decision rendered in the first Home Solution case does not lay down the correct law as we have held that there is value addition when the premises is let out for use in the course of or furtherance of business or commerce and it is, accordingly overruled. (para 75)

Service Tax: Renting of Immovable Property Service: Retrospective Effect: It is worth noting that the Parliament, keeping in view the first Home Solution case, substituted sub-clause (zzzz) in the present incarnation and gave retrospective effect to cure the deficiency. It is well settled in law that it is open to the legislature to pass a legislation retrospectively and remove the base on which a judgment is delivered. Having overruled the first Home Solution case, the provisions would operate from 2007 and the amendment brought by the Parliament is by way of ex abundanti cautela. The challenge to the amendment giving it retrospective effect is unsustainable and, accordingly, the same stands repelled and the retrospective amendment is declared as constitutionally valid. (para 71,74,75)

Service Tax: Renting of Immovable Property Service: Penalty for non-payment: On the question of penalty due to non-payment of tax, it is open to the government to examine whether any waiver or exemption can be granted. It may be noted that the appeal against Home Solutions-I is pending before the Supreme Court but the operation of the said judgment has not been stayed. (para 73)

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STO 2011 Kar 1118
[Date of Order: 2011-09-23]

Cenvat credit: Input tax: Export of non taxable service: Even though the export of software is not a taxable service but still the assessee cannot be denied the Cenvat credit. 

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STO 2011 Del 999
[Date of Order: 2011-09-23]

Service Tax: In the case of the agreements that have been entered with the owners, the liability rests with the owners to pay the service tax but the owners insist upon the petitioner to make payment of the service tax: An artificial liability has been created on the tenants by the Finance Act, 1994 in view of sub-section 90(a) which was inserted in Section 65 of the Finance Act, 1994 by the Finance Act, 2007 to tax any “service provided to any person by any other person in relation to renting of immovable property for use in the course or furtherance of business or commerce”: Constitutional validity: Scope and liability:

Service tax is a value added tax on the value addition provided by some service provider: Whether renting of immovable property for use in the course or furtherance of business or commerce by itself is a service. It is contended that whether renting of such immovable property by itself constitutes a service and, thereby, a taxable service. Renting of immovable property for use in the course or furtherance of business or commerce by itself does not entail any value addition and, therefore, cannot be regarded as a service:-- On the nature of service tax, besides the fact that service is inherent under Section 65(90a) and Section 65(105)(zzzz), there is value addition and the whole activity has an inseparable nexus with commercial activity. VAT was based on the additional services and the related VAT liability of the service provider can be calculated by deducting input tax credit from the tax collected on the services making it a multi point tax on value addition which is collected at different stages of providing services with provision for set off for the tax paid at the previous stage/tax on inputs. In this regard, the statutory provisions of the Central Excise Act, 1944, the Finance Act, 1994 and the CENVAT Credit Rules, 2004, Dr. Raja J. Chelliah Committee’s report on tax reforms as well as the decision in All India Federation of Tax Practitioners and Ors. (supra) wherein the Supreme Court has described service tax as VAT. (Para 3,25)

Levy of service tax under Article 248(2) read with Entry 97 of List I is permissible : It is contended that the impugned levy of tax is nothing but a tax on the letting of immovable property and the same is squarely covered by Entry 49 of List II and consequently, the Parliament has no legislative competence to levy the said tax under residuary Entry 97 of List I of the Seventh Schedule:-- In view of the decisions in Tamil Nadu Kalyana Mandapam Assn. (supra); All India Federation of Tax Practitioners and Ors. (supra) and Association of Leasing and Financial Service Companies (supra), levy of service tax under Article 248(2) read with Entry 97 of List I is permissible.(Para 3,15,24).

Doctrine of “pith and substance”:-- In case of conflict between the entries in List I and List II, the same has to be decided by application of the principle of “pith and substance”. The doctrine of “pith and substance” means that if an enactment substantially falls within the powers expressly conferred by the Constitution upon the legislature which enacted it, it cannot be held to be invalid merely because it incidentally encroaches on matters assigned to another legislature. When a law is impugned as being ultra-vires of the legislative competence, what is required to be ascertained is the true character of the legislation. If, on such an examination, it is found that the legislation is in substance one on a matter assigned to the legislature, then it must be held to be valid in its entirety even though it might incidentally trench on matters which are beyond its competence. In order to examine the true character of the enactment, the entire Act, its object and scope and effect is required to be gone into. The question of invasion into the territory of another legislation is to be determined not by degree but by substance. It is well settled that the entries in the three lists are only  legislative heads or fields of legislation and they demarcate the area over which the appropriate legislature can operate. The legislative entries must be given a large and liberal interpretation, the reason being that the allocation of subjects to the list is not by way of scientific or logical definition but is a mere enumeration of broad and comprehensive categories (Para 31,35).

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STO 2011 Kar 1160
[Date of Order: 2011-09-22]

Service Tax : Banking and Financial Services : Refund claim of tax paid for the period July, 2001 to August, 2004 : Scope and admissibility : In the instant case, the assessee has registered itself as a service provider under the Act. The tax paid by the assessee is under the Act. In fact it is not a tax which is levied, it is a tax which is due under the Act. As understood by the assessee and paid voluntarily it is not any tax paid under protest. Later, the assessee realized that he is not liable to pay tax and therefore he has claimed refund. Therefore it cannot be said that it is an admission made outside the provisions of the Act. That is precisely the reason why Section 11-B was invoked and an application for refund is filed. Once the party chooses the Forum and in fact as in this case succeeds in getting refund of the entire amount, the revisional authority in exercise of the power conferred on them exercises its jurisdiction and interferes with the order interpreting Section 11-B. It cannot be disputed that if the amount of tax paid is not under protest and any payment made under the Act if refund is sought it has to be done within one year from the date of such payment. When once the period of limitation is prescribed under the Act the provisions of the General Law stand excluded. If the application is not filed within the time stipulated the claim would be time barred. In fact, the Constitution Bench of the apex Court in the case of MAFATLAL INDUSTRIES LTD. vs. UNION OF INDIA = CEO 1996 SC 2 had an occasion to go into this question and they have in categorical terms laid down the law on the point. when the Act provides a complete mechanism for correcting any errors whether on fact or on law the burden is to work out his remedy within four corners of law. If the remedy is to be worked out within the four corners of law the party has accepted invoking the jurisdiction of the authority to refund within the period prescribed under the Act. (Para 4,5).

Appeal dismissed.

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STO 2011 Kar 927
[Date of Order: 2011-09-22]

Cenvat Credit: Service tax discharged by respondent as service receiver: Though he is the recipient of service tax, the service provider is outside the country. In law, he is treated as a service provider and is levied tax. It is to discharge the liability he is entitled to use the Cenvat credit which was available with him. 

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CEO 2011 Kar 629
[Date of Order: 2011-09-22]
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CEO 2011 Kar 623
[Date of Order: 2011-09-22]
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STO 2011 MP 1158
[Date of Order: 2011-09-21]

Service Tax: Imposition of ‘service tax’ on renting of immovable property : Retrospective amendments: Scope and liability: The legislature amended the definition of “taxable service” by enacting the Finance Act, 2010, wherein sub-clause (zzzz) of Clause (95) of Section 65 was amended and “taxable service” was defined to include “any service provided or to be provided to any person, by any other person, by renting of immovable property”. Further by Section 77 of the Finance Act, 2010 this amendment was given retrospective effect. This amendment as well as retrospective of the same is under challenge. The challenge is primarily based on the same arguments which were advanced and accepted by the Delhi High Court in the case of Home Solutions Retail India Limited (supra). It has also been argued that restrospectivity was not permissible because this amendment to the definition of “taxable service” is not merely clarificatory but brings about a substantive liability of taxation upon the service providers. It has also contended that by giving a retrospective effect to this amendment to the definition of “taxable service”, the service provider is also saddled with liability to pay interest as well as penalty on the default in payment of service tax for the past period. These issues have been answered against the petitioners by detailed decisions of the Punjab and Haryana High Court, Bombay High Court, Gujarat High Court and Orissa High Court in Shubh Timb Steels Ltd. v. Union of India and others, 2010 (236) CTR (P & H) = 562/37 VST 46 = STO 2010 P&H 922, Retailers Association of India v. Union of India and others, W.P. No. 2238/2010 decided on 4-8-2011 [STO 2011 Bom 375], Cinemax India Limited through Director v. Union of India through Secretary, SCA. No. 8032/2010 decided on 23-8-2011, 2011 (24) S.T.R. 3 (Guj.) and Utkal Builders Limited v. Union of India, W.P. (C) No. 23155/2010, decided on 17-3-2011 [STO 2011 Ori 386].(Para 7-10,13)

Petitions dismissed.

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STO 2011 Kar 1204
[Date of Order: 2011-09-15]
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CEO 2011 Kar 553
[Date of Order: 2011-09-15]
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STO 2011 Kar 1179
[Date of Order: 2011-09-15]

Service Tax: Waiver of penalty imposed under Section 78: Scope: Service tax with interest was paid during investigation before issue of show cause notice. Leviability of tax was not disputed by appellant. The issue covered under Section 73(3) of Finance Act, 1994 and appellant entitled to waiver of show cause notice. The records indicates the absence of intent to evade duty, hence penalty not imposable under Sections 76, 77 and 78 ibid.(Para 2).

Appeal dismissed.

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STO 2011 Kar 1155
[Date of Order: 2011-09-09]

Penalty - Assessee paid both Service tax and interest for delayed payments before issue of show cause notice - Authorities have no authority to initiate proceedings for recovery of penalty under Section 76 of Finance Act, 1994. [paras 2, 3]

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