TaxTMI 
TaxTMI 
2024 (4) TMI 533
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.... I set aside the penalty of Rs. 5000/- imposed upon the Appellant under Section 77(2) 5. I uphold the penalty imposed amounting Finance Act, 1994. to Rs. 30,71,176/- under Section 78 of the Finance Act, 1994." 2.1 The appellant is registered with the Department as a manufacturer of various consumer electronic goods and also as a service provider in respect of various taxable services namely Advertising Agency, Consulting Engineer, Maintenance & Repair Service, Business Auxiliary Service etc. 2.2 The appellant is exporting their produce to various countries and to promote their sales they have appointed a commission agent LG Electronics Inc, Korea. They entered into an agreement dated 01.01.2009, specifying the terms and conditions for engagement of the service provider. Appellants were required to pay service tax on the commission received under reverse charge mechanism but for Exemption Notification No.18/2009-ST by following the prescribed procedure. 2.3 Audit officers of AGUP, Lucknow conducted a an audit of the records of the appellant for the period April 2010 to March 2011. In the audit note communicated vide CERA No.52211-12 it was alleged that the appellan....
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....the shipping bill as required under the said notification. ➢ The impugned order goes beyond the SCN by stating that the amount of exemption claimed by the Appellant was more than what is allowed under the notification. Reliance is placed on the decision in case of Toyo Engineering India Limited, 2006 (7) SCC 592 and in case of Calibre Chemicals Pvt. Ltd. [2021 (52) GSTL 618]. ➢ Appellant in Para 40 of the Reply to the Audit Report dated 12.06.2012 stated the Appellant has shown the copy of the agreement to the audit party and has also attached the copy of the agreement as Annexure D & E in the Reply to the Audit Report. Merely because the copy of the agreement could be produced instantly may not be the reason for disallowing the benefit of the Notification. ➢ all the facts establishing that the commission was paid for procurement of orders for goods exported are available then merely a failure to mention the commission amount in the shipping bills could not be the reason to disallow the benefit of the notification. Reliance is placed on the decision in case of Radian Textiles Ltd. [2017 (47) SRT 195.] ➢ Demand is beyon....
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....le under Clearing and Forwarding agent services, Service Tax of Rs 30,71,176.00 was leviable. Service tax was not paid by the assessee. On being pointed out in audit, the assessee management stated that they had paid export commission amounting to rs 2,98,17,242.00 which was related to financial year 2009-10. They had not paid service tax on this amount as per Notification No 18/2009 dated 7.7.2009 and no export commission has been paid by them for the period 2010-11. The reply is not tenable as Notification no 18/2009 dated 7.7.2009 is not applicable in this case as bill of export on which the amount of commission paid was shown, copy of agreement and half yearly return to this concern etc. as was required under the above notification was not shown to audit. Therefore above service tax of Rs 30,71,176.00 was payable on the said commission which was not paid and therefore is recoverable from the assessee along with interest. The matter is brought to the notice of the Department for remedial action under intimation to audit." 4.3 After receipt of this audit objection deaprtment proceeded to issue show cause notice for the period from 2009-10 in 2013 invoking the....
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.... (i) informs the Assistant Commissioner of Central Excise or the Deputy Commissioner of Central Excise, as the case may be, having jurisdiction over the factory or the regional office or the head office, as the case may be, in Form EXP1, before availing 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, withi....
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....il ID of the exporter........: 8. Import -Export Code No.............. 9. Details of Bank Account (Name of Bank, branch address and account number) I/we undertake that I/we shall comply with the conditions laid down in the said notification and in case of any change in aforementioned particulars, I/We shall intimate the same. Date: Place: Signature and Full Address of Exporter (Affix stamp) Receipt (to be given by office of Assistant Commissioner/ Deputy Commissioner having jurisdiction) Received Form EXP1 dated --/--/-- submitted by __________( name of the exporter). The said intimation is accepted and given acknowledgment No. _____ ( S. No. Above) For Assistant / Deputy Commissioner (Stamp)" Form- EXP2 [see Paragraph (c))] To, The Deputy Commissioner /Assistant Commissioner of Central Excise Sir, I/We have availed exemption of service tax under Notification No.18/2009-ST. dated 7th July, 2009 in respect of services, namely, the services provided for transport of said goods by road services provided by a commission agent, located outside India and have used....
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....bsp; 9. Declaration:- I / We hereby declare that- (i) I have complied with all the conditions mentioned in notification No 18/09-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 (Affix stamp) Enclosures: as above" 4.7 For availing the benefit of Notification No.18/2009-ST appellant was required to file details of export made against which they were claiming the benefit of exemption under ....
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..... [2005 (188) E.L.T. 149 (S.C.)] "27. Relying on the aforesaid observations of this Court in the case of Pushpam Pharmaceutical Co. v. Collector of Central Excise, Bombay [1995 Suppl. (3) SCC 462], we find that "suppression of facts" can have only one meaning that the correct information was not disclosed deliberately to evade payment of duty, when facts were known to both the parties, the omission by one to do what he might have done not that he must have done would not render it suppression. It is settled law that mere failure to declare does not amount to willful suppression. There must be some positive act from the side of the assessee to find willful suppression. Therefore, in view of our findings made herein above that there was no deliberate intention on the part of the appellant not to disclose the correct information or to evade payment of duty, it was not open to the Central Excise Officer to proceed to recover duties in the manner indicated in proviso to Section 11A of the Act. We are, therefore, of the firm opinion that where facts were known to both the parties, as in the instant case, it was not open to the CEGAT to come to a conclusion that the appellant was....
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....r the circulars of the Central Board of Excise and Customs, the Range Officer was required to carry out a detailed scrutiny of the ER-1 returns and if this had been done, the short payment would have been detected. There was no evidence of any collusion between the assessee and the jurisdictional Central Excise Officers. The short payment was detected when an audit team visited the premises and examined the records but this, as the Tribunal held, could have been detected even by the jurisdictional Range Officer much earlier. In the circumstances, it was held that there was no suppression of fact or wilful misstatement on the part of the assessee and no ground was, therefore, available for invoking the extended period of limitation. In addition, the Tribunal observed that in the present case, the situation was revenue neutral since, in the facts of the case, the entire duty paid by the assessee in respect of the clearances of MS tanks and radiators to its transformer unit was available to the transformer unit as Cenvat credit. In other words, the Cenvat credit was available not to a third party buyer of the assessee's manufactured goods but to the assessee itself in its transformer ....