Court : Customs Excise and Service Tax Appellate Tribunal CESTAT Chennai
..... adjudicating authority confirmed the demand of rs.7,60,566/- along with interest being excess credit availed for the period 23.07.1996 to 03.05.1997 under section 87 of the finance act, 1997 and rule 57i of the erstwhile central excise rules, 1944 read with section 11a of the central excise act. ..... as per section 87 of the finance act, 1997, the restriction of credit of duties paid on the specified petroleum products as per notification, dated 03.05.1997, used as inputs in the manufacture of final products shall be deemed to prevail over all the notification with effect on and from 23rd july, 1996 to 3rd may, 1997. ..... section 87 of the finance act, 1997 retrospectively validated the notification dated 03.05.1997 issued in exercise of power under rule 57a of the erstwhile rules for the period on and from 23.07.1996 to 03.05.1997. ..... the honble high court held that section 87 of the finance act and notification no.14/97-ce(nt) (supra) are subject to the limitation provided under section 11a of the central excise act, 1944. ..... a show-cause notice dated 01.11.1997 was issued to the assessee proposing to demand of an amount of rs.7,60,566/- along with interest as per notification no.14/97-ce(nt), dated 03.05.1997 and section 87 of finance act, 1997. ..... in effect, the limit of 10% ad valorem under section 87 of the finance act, 1997 would not apply in respect of credit availed under rule 57b of the rules as substituted vide notification no.6/97-ce(nt), dated 01.03.1997. 6. .....
Tag this Judgment!Court : Customs Excise and Service Tax Appellate Tribunal CESTAT Chennai
..... as far as revenue's appeal is concerned the dispute is now well settled that prior to introduction of section 66a in finance act, 1994, no demand for service tax from recipient of service under reverse charge mechanism as per rule 2 (1) (d) (iv) could be sustained ..... further penalties under section 76 and 78 of finance act 1994 were imposed. ..... subsequently, a show cause notice was issued on 09-05-08 for demanding service tax and interest and also for imposing penalties under various sections of the finance act, 1994. ..... 235 (bom) and held that service tax demand for the period prior to 18-04-06 when section 66a was introduced in finance act, 1994 is not sustainable ..... finding of bombay high court was that rule 2(1) (d) (iv) of service tax rules, 1994 was ultravires the provisions of finance act, 1994. ..... court in the case of indian national shipowners association which decisions came much later and there was considerable confusion among the tax-payers on this issue. ..... he confirmed the tax liability from 18-04-06 onwards and also confirmed various penalties imposed by adjudicating authority. ..... the adjudication order, the demand of rs.7,78,559/- was confirmed against the appellant along with interest under section 75. ..... on such service of agents received and commission paid, appellant was not paying service tax during the period nov 04 to sept ..... the appeals are filed against the same impugned order and hence being considered together. 2. ..... one is filed by the assessee and the other is filed by revenue .....
Tag this Judgment!Court : Customs Excise and Service Tax Appellate Tribunal CESTAT Chennai
..... he also prays that in case penalty is held to be imposable, there is no case for imposition of penalty under section 76 as well as under section 78 of the finance act, 1994 as the appellants had not paid the tax merely on the ground that the customers had not paid the tax to them and there was no suppression of the value of the taxable service. 2. ..... accordingly, penalty imposed on the appellants under section 78 of the finance act, 1994 is set aside and the appellants are directed to pay the interest amount on the delayed payment of the tax forthwith as undertaken by ld.advocate. 4. ..... however, i am of the view that, in the facts and circumstances of the case, imposition of penalty under section 76 of the finance act, 1994 meets the ends of justice. ..... he states that provisions of section 73 (3) of the finance act, 1994 should have been applied in the case of the appellants and no penalty should have been imposed. ..... under the circumstances, the provisions of section 73 (3) of the finance act, 1994 cannot be applied to the facts of the appellants. ..... there is no need in this case for imposition of a separate penalty under section 78 of the finance act, 1994. ..... i also take note of the fact that the subsequent amendment to the act has made the penalties under section 76 and 78 mutually exclusive. ..... he says that appellants had not paid the full amount of the tax and interest thereon before issue of show-cause notice and hence the benefit of section 73 (3) cannot be allowed in their case. .....
Tag this Judgment!Court : Customs Excise and Service Tax Appellate Tribunal CESTAT Chennai
..... , as per the provisions of section 78 of the finance act, 1994, penalty under section 76 cannot be imposed, when penalty under section 78 has been imposed. ..... in view of the above reasons, we humbly request that the adjudicating authority may kindly pass an appropriate order under the provisions of section 74 of the finance act, 1994 by rectifying the error. ..... issues raised by you in the cited letter have been examined with reference to the applicable provisions of finance act, 1994 and the following clarification are issued. ..... for reasons recorded below, i waived predeposit of penalty imposed upon the assessees (entire service tax demand has been paid together with interest) and proceeded to decide the appeal itself at this stage with the consent of both sides, as the issue lies within a narrow compass. ..... since there is no finding on the merits of the demand, by the commissioner (appeals), i set aside the impugned order and remit the case to the lower appellate authority for decision on merits after extending a reasonable opportunity of hearing to the assessees ..... (ii) the provisions of section 76 and 78 are mutually exclusive only from 10.05.2008 onwards and not for the earlier ..... your contention is not prima-facie acceptable on the above two points and the order passed is in accordance with the law. ..... since such application was disposed of on 27.9.2010, and the appeal was filed before the commissioner (appeals) on 18.10.2010, the appeal could not have been dismissed on the ground of time- .....
Tag this Judgment!Court : Customs Excise and Service Tax Appellate Tribunal CESTAT Chennai
..... in this background, we look at the provisions of the cenvat credit rules, 2004, which have been framed invoking the statutory rule making powers conferred under section 37 of the central excise act, 1944 and section 94 of the finance act, 1994. ..... the cenvat credit rules, 2004, have been made by the central government in exercise of the powers conferred by section 37 of the central excise act, 1944 and section 94 of the finance act, 1994. ..... as pointed out earlier, under section 94 of the finance act, 1994, the expression used is services consumed for providing a taxable service, under rule 2 (l) the expression used is any service used by a provider of taxable service and under rule 5 thereof, the expression used is input service used in providing output service. ..... section 94 of the finance act, 1994 allows the central government to make rules to provide, interalia, for the following:- (ee) the credit of service tax paid on the services consumed for providing a taxable service in case where the services consumed and the service provided fall in the same category of taxable service. ..... we do not find any power under section 94 of the finance act, 1994, for making rules for refund of cenvat credit. ..... we note at this stage that section 94 (2) of the finance act, 1994, refers to credit of service tax paid on the services consumed for providing a taxable service whereas the definition of input service in the cenvat credit rules, 2004, uses the expression any service used by a provider of .....
Tag this Judgment!Court : Customs Excise and Service Tax Appellate Tribunal CESTAT Chennai
..... any taxable service, excluding the taxable service referred to in sub-clause (zzp) of clause (105) of section 65 of the finance act, provided by the provider of taxable service, to a customer, client, subscriber, policy holder or any other person, as the case may be, and the expressions 'provider' and 'provided' shall be construed accordingly;" d). ..... authority confirmed the demand of service tax of rs.10,27,257/- along with interest under section 73 (1) of the finance act, 1994 and disallowed the cenvat credit of rs.10,27,257/- under rule 14 of the ccr 2007 utilized towards the payment of tax and imposed penalty. ..... 1.3.2008, sub-clause (zzzp) of clause (105) of section 65 of the finance act, 1994 was specifically excluded from the definition of "output service" under cenvat credit rules ..... service tax on any output service" e).section 68 (2) of finance act, 1994 provides payment of service tax as under ..... waived by invoking section 80 of the finance act, 1994. ..... that gta service is covered in sub-clause (zzzp) of clause (105) of section 65 of the finance act. ..... notwithstanding anything contained in sub-section (1), in respect of any taxable service notified by the central government in the official gazette, the service tax thereon shall be paid by such person and in such manner as may be prescribed at the rate specified in section 66 and all the provisions of this chapter shall apply to such person as if he is the person liable for paying the service tax in relation to such service .....
Tag this Judgment!Court : Customs Excise and Service Tax Appellate Tribunal CESTAT Chennai
..... by the time of adjudication, section 97 was inserted in finance act, 1994 exempting service tax in respect of management, maintenance and repair service retrospectively from 16-05-2005, by finance act 2012. ..... at any rate, when the appellant did not owe any money to the government in view of the retrospective amount as per section 97 of finance act, 1994 the demand for interest cannot be sustained. 5. ..... the adjudicating authority ordered that the amount already paid by the appellant be credited to the consumer welfare fund in terms of section 73a(6) of the finance act, 1994. ..... as a rejoinder, the consultant for the appellant submits that the dates of 16-09-08 and 3-10-08 were the dates on which the contract amounts were realized including service tax and the service tax amount was collected only on 1.10.2009 and the same was remitted on 5.10.2009 and there was no delay in remitting tax. ..... ar for revenue submits that appellant had collected the amount on 16.9.2008 and on 3.10.2008 and these amounts were actually remitted only on 5.10.2009 and therefore there was delay in paying the tax amount and interest demanded is maintainable. 4. ..... the commissioner (appeals) modified the order of crediting the money to consumer welfare fund and ordered that the amount shall be restored to the government account. ..... therefore, the department issued show cause notice for recovery of tax not paid in time and also for appropriating tax subsequently paid and also demanding an interest amount of rs.1,31,888/-. .....
Tag this Judgment!Court : Customs Excise and Service Tax Appellate Tribunal CESTAT Chennai
..... penalty under section 76, i do not see force in the submission of the assessee that they had a reasonable cause for failure to register and file returns and pay tax, as the reason adduced by them is ignorance of law and interpretation of statutory provisions, which is not sufficient to extend the section 80 of the finance act, 1994. ..... thus partly allowed by setting aside the penalty under section 78, reducing the penalty under section 76 and upholding penalty under section 77 of the finance act, 1994. ..... the present appeal is only to the imposition of penalties under section 76, 77 and 78 of chapter v of the finance act, 1994 the demand of service tax together with interest stands paid and is not challenged. 2. ..... set aside the penalty imposed under section 78 of the finance act, 1994. ..... submission that penalty imposed under the provisions of section 78 is not sustainable for the reason that the penalty under the above mentioned provision can be imposed only if service tax has not been levied or paid or has been short-levied or short-paid or erroneously refunded, due to fraud or collusion or wilful mis-statement or suppression of facts or contravention with intent to evade payment of service tax and review show-cause notice issued by the commissioner ..... although the notice states that the assessees got registered, filed returns and paid service tax only after detection by the department by the department, this averment is not enough to hold that the notice has alleged fraud or suppression .....
Tag this Judgment!Court : Customs Excise and Service Tax Appellate Tribunal CESTAT Chennai
..... the revenue is aggrieved by the setting aside of penalties imposed on the assessees herein under the provisions of sections 76 and 78 of the finance act, 1994, on the ground that the assessees had established reasonable cause for failure to pay the service tax leviable within time, and extended the protection under section 80. 2. ..... section 80 of the finance act provides that notwithstanding anything contained in the provisions of sections 76, 77 and 78, no penalty shall be imposable on the assessee for any failure referred to in the said provisions if the assessee proves that there was reasonable cause for the said failure. ..... in these circumstances it cannot be held that the assessees were guilty of suppression with intention to evade payment of tax so as to make them liable to penalty under sections 76 and 78 of the finance act, 1944. ..... the commissioner (appeals) has therefore rightly extended the protection under section 80 of the finance act. ..... the commissioner (appeals) has noted that the assessees had obtained registration certificate well before the issue of levy of tax arose and that there was a confusion in the mind of the assessee since southern region petroleum corporation contractors welfare association was taking steps to move the high court regarding levy of service tax. ..... i, therefore, uphold the impugned order and reject the appeal. .....
Tag this Judgment!Court : Customs Excise and Service Tax Appellate Tribunal CESTAT Chennai
..... 31.7.2009 raising service tax demand of rs.59,20,783/- followed by penalty under section 78 of the finance act, 1994 (hereinafter referred to as the act) and interest as leviable on the tax demand under law, the appellant came in appeal challenging that when the appellant provided courier service to the main courier namely professional couriers and service tax having been paid by the latter, there shall not be levy on ..... held that appellant provided business support service as is meant by section 65 (104) (c) of the finance act, 1994.4. ..... also stated in the said letter that professional courier was registered under finance act, 1994 as courier agency and discharged service tax on the moneys received from the clients. ..... counsel that finance act 1994 does not envisage double taxation and once professional courier has paid service tax, the present appellant shall not be liable to tax for the same ..... the course of hearing, the appellant could not satisfy whether it was acting as courier in substance making delivery of the consignments of the principal courier ..... no doubt, larger bench decided the case of stock brokers and sub-brokers where the matter in controversy was about taxability as was the question framed in para-1 of the reported decision cited ..... it is therefore not possible to hold that the appellant acted as a courier without being a provider of business support ..... but entire plea of appellant was without proof and nothing was proved to show that the appellant was a mere agent of the .....
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