TaxTMI 
TaxTMI 
2025 (4) TMI 819
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....; and are registered under various categories of service tax. The Appellant was availing CENVAT credit of payment of service tax and availed CENVAT credit of the service tax paid on the Goods Transport Agency (GTA) services used for the export of their goods. The appellant utilized the services of foreign selling/marketing agents for sale of their manufactured goods in foreign countries and paid commission to the said agents for the services rendered. During Audit for the period March 2009-June 2012, it was observed that the appellant had irregularly availed the benefit of exemption Notification No. 18/2009-ST dated 07.07.2009 or Notification No. 42/2012-ST dated 29.06.2012 on 'commission paid to foreign selling/ marketing agents' as they have availed Cenvat Credit on GTA services for clearance of export goods. The appellant for the eligibility of benefit of the notification has submitted a declaration under the notifications; "9. Declaration: I/we hereby declare that--------(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". Hence it is alleged by the department that the exemption No....
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....Appellant submits that; the impugned orders are unsustainable, since it is issued without considering the provisions of law; 'specified service' referred to is only that particular service for which exemption is claimed and to that particular extent for which the exemption is claimed; the Appellant had correctly declared non-availment of CENVAT credit and as long as the Appellant had not claimed the CENVAT credit of the service tax paid on the 'commission paid to foreign selling/marketing agents', they are eligible for the benefit of exemption notification. Ld. Counsel further submits that as per Notification No. 18/2009-ST, the Appellant is required to submit a declaration that no CENVAT credit has been availed on the 'specified service'. This declaration is not a condition stipulated by the Notification with reference to the eligibility for the exemption. The condition for eligibility has been clearly set out in column No. (iv) of the Notification No.41/2007-ST, which preceded the Notification No. 18/2009-ST, non-availment of CENVAT credit was specifically stipulated as a condition to be eligible for exemption, whereas in Notification No. 18/2009-ST, there....
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....tax. As regards the condition related to export of canalized items, project export, etc., Appellant had complied with the above condition. As regards submission of half yearly return, Appellant duly submitted the half yearly return after certification of the same. As regards the other conditions, Appellant had submitted the details of the services of foreign commission agent and copy of the same was also produced as part of the Appeal Memorandum, Appellant is registered with Export Promotion Council and holding valid IEC and registered with service tax department and Appellant was the service recipient of the service specified and liable to pay the service tax under reverse charge. The invoices/bills raised by the Foreign Commission agent are in the name of the Appellant and Ld. Counsel also draws our attention to the sample copies of such invoices. Since the Appellant is availing the exemption, Appellant had filed form EXP-2/ EXP-4 returns on due date, and it is verified by the audit officer and there is no objection raised at any point of time. Further the Appellant had submitted the invoices, and a certification was also attached along with the returns to the effect that these &....
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....ervice tax on services provided by 'commission agent located outside India'. Considering the specified service as the only service mentioned in the above said Notification, appellant rightly claimed the exemption as per Notification No. 18/2009-ST dated 07.07.2009 and Notification No. 42/2012-ST dated 29.06.2012 on the 'commission paid to foreign selling/marketing agency' by fulfilling the conditions, therein. 8. As regards the demand for the period from July 2009 to June 2012, Ld. Counsel for the Appellant further submits that, Appellant is also eligible for exemption of service tax on services of foreign commission agent, where it is used exclusively for the units in Special Economic Zone and it amounts to Rs.80,30,959/- out of total demand of Rs. 2,82,81,768/-. As per Section 26(1)(e) of the Special Economic Zone Act, 2005 read with Rule 31 of the Special Economic Zone Rules, 2006 service tax is exempted under Chapter V of the Finance Act, 1994 on taxable services provided to a Developer to carry on the authorized operations in a Special Economic Zone. The Ld. Counsel for the Appellant submits that Section 51 of the Special Economic Zone Act, 2005 provides tha....
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....sion or (b) any willful misstatement or (c) suppression of facts. The Show Cause Notice dated 21.04.2014 has not adequately displayed the presence of any of these ingredients in the case and the impugned common Orders-in-Original dated 23.02.2018 has erred in upholding the invocation of extended period of limitation. 12. The Ld. Counsel also submits that the Appellant had produced all the relevant documents including the half-yearly returns as required under the Notification Nos. 18/2009-ST and 42/2012-ST. The Respondent failed to produce any material to show that the Appellant had suppressed the material facts. The Ld. Counsel draws our attention to the decision in the matter of M/s Monarch Catalyst Pvt., Ltd., Vs. CCE, Thane (2016 (2) TMI 64), wherein the Hon'ble Tribunal held that since the Respondent had not placed any evidence or material on record to show that the assessee had willfully suppressed material facts with an intent to evade duty, the entire demand was barred by limitation. The Ld. Counsel for the Appellant also submits that the Respondent had failed to prove that the Appellant acted with a malafide intention or suppression facts in order to avail the exemption.....