2019 (8) TMI 1692

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....reof. The appellant is registered with the service tax Department holding Service Tax Registration No. AABCS4997EST003 under the category of 'Goods Transport Agency Service' (GTA) and 'Business Auxiliary Service' (BAS) under Finance Act, 1994 (for short 'Act'). While doing the export, the appellant had been receiving services of foreign agents for export sale of their manufactured goods on commission basis, under BAS as per the definition contained under Section 65 (19) and Section 66 (A) of the Act read with Rule 2 (i) (d) and Rule 3 of Service Tax Rules as amended. The appellant was also availing the exemption Notification No. 18/2009-ST dated 07.07.2009, for the services received from foreign commission agent as the exporter, which exempted the payment of service tax on the value of services procured from overseas commission agent. The Department, however, investigated the matter and alleged that the appellant had paid Rs. 95,30,294/- during year 2009-10 to 2010-11 (up to 2/11), towards the commission to foreign agent but failed to pay the appropriate services tax thereon. The appellant under pressure from the departmental officer paid the amount of Rs. 9,81,619/- towards the se....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

.... and (i) of the Notification, and also half yearly return in the form of EXP-2 giving complete information as prescribed in the Notification had been duly complied with. This fact was not considered by both the lower authorities and the demands were upheld. (c) Learned Advocate has also submitted that the demand is completely time barred as the appellant had been regularly filing half yearly returns in the form of EXP-2 declaration for the period (i.e. 01.07.2009 to 31.03.2011) with Jurisdictional Deputy/ Assistant Commissioner, from time to time. This declaration has never been disputed by the Jurisdictional Deputy/Assistant Commissioner, who is the prescribed authority in the said Notification No. 18/2009-ST. Therefore, raising the demand by the investigating officer is completely incorrect and contrary to the provisions of Finance Act. (d) It is also submitted that even though the appellant had no service tax liability on commission paid to foreign agent during the relevant period but due to pressure from the Central Excise Officer the Appellant had deposited the amount on 21.03.2011 and 02.12.2011 with a request to close the investigation. However, the same wa....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....dispute is only with respect to the entitlement of the Notification No. 18/2009-ST to the appellant for the services of foreign commission agent. 7. For the proper appreciation of facts and resolution of controversy, involved it will be worthwhile to reproduce the Notification No. 18/2009-ST dated 07.07.2009 which is as under; Notification No.18/2009 - Service Tax New Delhi, 7th July, 2009 (E).- In exercise of the powers conferred by sub-section (1) of section 93 of the Finance Act, 1994 (32 of 1994) (hereinafter referred to as the said Act), the Central Government, on being satisfied that it is necessary in the public interest so to do, hereby exempts the taxable service received by an exporter of goods (hereinafter referred to as the exporter) and used for export of goods (hereinafter referred to as the said goods), of the description specified in column (3) of the Table below (hereinafter referred to as the specified service), pertaining to sub-clauses of clause (105) of section 65 of the said Act specified in the corresponding entry in column (2) of the said Table, from the whole of the service tax leviable thereon under section 66 and section 66A of the said ....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

.... the said exemption; (ii) is registered with an export promotion council sponsored by the Ministry of Commerce or the Ministry of Textiles, as the case may be; (iii) is a holder of Import-Export Code Number; (iv) is registered under section 69 of the said Act; (v) is liable to pay service tax under sub-section (2) of section 68 of said Act, read with sub clause (iv) or sub-clause (v) of clause (d) of sub-rule (1) of rule 2 of the Service Tax Rules,1994, for the specified service; (b) the invoice, bill or challan, or any other document issued by the service provider to the exporter, on which the exporter intend to avail exemption, shall be issued in the name of the exporter, showing that the exporter is liable to pay the service tax in terms of item (v) of clause (a); (c) the exporter availing the exemption shall file the return in Form EXP2 every six months of the financial year, within fifteen days of the completion of the said six months; (d) the exporter shall submit with the half yearly return, after certification, the documents in original specified in clause (b) and the certified copies of the documents s....