AI OCR 
TaxTMI 
TaxTMI 
TaxTMI 
2023 (5) TMI 722
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....position of penalty under Section 76 of the Act. 2. The Appellant is engaged in manufacture of graphite electrodes falling under Chapter Heading 85451100 of the Central Excise Tariff Act, 1985. The Appellant is registered both under Central Excise registration No.AAACH6184KXM004 and service tax registration No. AAACH66184KST001 for providing/receiving various taxable services such as Business Auxiliary service, Banking & Financial Service, Cargo Handling service, Consulting Engineers services, Legal service and Renting of Immovable property service, Goods transport agency service etc. 3. The Appellant filed four EXP-1s on 02.04.2012 and another one on 03.04.2013 in the office of the Deputy Commissioner, Central Excise & Service Tax, Division-II, Bhopal intimating their intention to avail exemption from service tax under Notification No. 18/2009 dated 07.07.2009 in respect of four services namely Banking & Financial services, Goods Transport Agency service, Consulting Engineering service and Business Auxiliary services. 4. The Department vide letters dated 15.10.2012 and 15.04.2013 informed the Appellant that the return has to be filed by the Appellant in form EXP-2. Thereafter, ....
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....ed Order-in-Appeal upheld the Order-in-Original and confirmed the demand of service tax of Rs. 54,72,198/- against the Appellant under GTA Service by denying the benefit of the exemption notifications to the Appellant. 9. The learned counsel appearing for the appellant submitted that Appellant is a manufacturer /exporter of graphite electrodes and has used GTA service for transportation of the said goods to port of export. Therefore, the Appellant availed exemption from service tax on taxable services received by them under Notification No. 18/2009-ST dated 7.7.2009 and Notification No. 31/2012 dated 20.06.2012. 10. He submitted that the impugned order traveled beyond the scope of the show cause notice and is required to be set-aside. He submitted that show cause notice is the foundation of the case and since the appellate authority had taken note of the fact that the information/documents were not in the proper format of table A and table B as required in the return EXP-2. He contended that there were no allegations in the show cause notice with respect to the failure to file the shipping bills/bills of export and failure to file the details of use of subject services in exports....
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....pellant, that all the conditions, except the condition that the appellant has to intimate the concerned Asst./Dy. Commissioner by filing Form-EXP-1 was not complied. So also, appellant failed to submit the return in Form EXP-2 as stipulated in sub-clause (c) of the conditions stated in the Notification. Needless to say that exemption/refund/rebate etc. are export oriented schemes. If the fact of export has been established, refund is not to be denied on merely technical interpretation of procedures. In Suksha International Vs. Union of India - 1989 (39) E.L.T. 503 (S.C.) the Hon'ble Apex Court has observed that an interpretation unduly restricting the scope of beneficial provision is to be avoided, so that it may not take a way with one hand, what the policy gives with the other. The Hon'ble Apex Court in Mangalore Chemicals and Fertilizers Ltd. Vs. Dy. Commissioner, 1991 (55) E.L.T. 437 (S.C.) while drawing a distinction between procedural condition of a technical nature and substantive condition, held that procedural conditions of technical nature can be condoned. The procedures prescribed in the notification are to facilitate verification of the claims. Since there is no....
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.... the case laws cited. 4. We have considered the facts and the submissions made in this case. As is evident from the several judgments cited above, it has been consistently held that substantial benefit cannot be denied in such cases merely because some aspects of the procedure had not been followed. Indeed, such adjustment has been permitted by the CESTAT in BSNL's own case cited in the earlier para. In the present case there has been no mala fide on the part of the appellant as is evident from the fact that the adjudicating authority refrained from imposing any penalty observing that he appellant acted in a bona fide manner and mala fide cannot be attributed to them. (emphasis supplied) 17. Therefore, applying the ratio of the case laws above, it was submitted that substantive benefit cannot be denied due to mere procedural lapse. Reliance was also placed on the decision of Appellant itself reported at HEG Ltd. Vs. Commissioner of Customs, Central Excise and Service Tax, Bhopal 2019 (7) TMI 773-CESTAT, New Delhi wherein exemption benefit has been allowed under Notification No. 18/2009-ST under similar circumstances including late filing of the aforesaid returns. 18. Furth....
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....le 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 Act, subject to the conditions specified in column (4) of the said Table, namely Sl No 1 Sub-clause 2 Description of the taxable service 3 Conditions 4 1 zzp Service provided to an exporter for transport of the said goods by road from any container freight station or inland container depot to the port or airport, as the case may be, from where the goods are exported; or Service provided to an exporter in relation to transport of said goods by road directly from their place of removal, to an inland container depot, a container freight station, a port or airport, as the case may be, from where the goods are exported The exporter shall have to produce the con....
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....authorised by the Board of Directors; (g) where the amount of service tax in respect of the service specified against serial No. 2 of the Table exceeds one per cent. of the free on board value of the export then, the amount in excess of the said one per cent. shall be paid within the period specified under rule 6 of the Service Tax Rules, 1994;" 22. Further, in order to appreciate the arguments of the learned counsel, we reproduce the EXP-1 & EXP-2 format for ease of reference; Form- EXP-1 - S. No------- To, The Deputy Commissioner /Assistant Commissioner of Central Excise Sir, I/We intend to avail the exemption from service tax under Notification No.18/2009-ST, dated...............in respect of services for transport of said goods by road or services provided by a commission agent located outside India, which have been used for export of goods and the relevant particulars are as follows. 1. Name of the exporter. 2. Service Tax Registration No. 3. Division ......... Commissionerate ............... 4 Membership No. the Export Council 5 Name of the Export Council 6. Address of the registered / head office of exporter: 7. Tel. No. and e-mail I....
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....ments attached showing the use of such services for export, the details of which are mentioned in Table 'A' (self attested) Total amount of service tax claimed as exemption Name of the service provider Address of the service provider Invoice no Date Description of services Classification of the service under the Finance Atc, 1994 9. Declaration:-I / We hereby declare that- (i) I have complied with all the conditions mentioned in notification No18/09-ST, dated 7th July, 2009; (ii) the information given in this application form is true, correct and complete in every respect and that I am authorised to sign on behalf of the exporter; (iii) no CENVAT credit of service tax paid on the specified services used for export of said goods taken under the CENVAT Credit Rules, 2004; (iv) I / we, am/ are enclosing all the required documents. Further, I understand that failure to file the return within stipulated time or non-enclosure of the required document, duly certified, would debar me/us for the refund claimed aforesaid. Date: Place: Signature and full address of Exporter Enclosures: as abov....
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....inders for filing the said return, but the appellant did not feel it necessary to respond to these letters. Our attention was drawn to the earlier decision of this Tribunal in the Appellant's own case HEG Ltd vs Commissioner of Customs, Central Excise & Service Tax, Bhopal [2019(7) TMI 773-CESTAT, New Delhi]. The benefit of the exemption notification was extended to the appellant despite their delay in filing the required returns. The Tribunal opined that the mere procedural lapse which admittedly is on account of non availability of shipping bills due to delay on the part of Customs cannot be the ground to deny the substantial benefit of the notification. As has been observed previously, the appellant was very prompt when seeking the exemption under the said notifications, but did not show similar promptness while filing returns. It is also seen that while filing the returns, the appellant did not take due care to file the data/documents as required, despite having undertaken to file the same. The appellant can be excused once for not having complied with the provisions of the notification for which the Tribunal has allowed the benefit. But it cannot be the case for the appellant ....