TaxTMI 
TaxTMI 
TaxTMI 
2025 (9) TMI 1637
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..... The appellant was availing the benefit of exemption Notification No. 18/2009-ST dated 07.07.2009 in respect of services viz. the services provided for transport of export goods and the services provided by Commission Agent located outside India. Two Show cause notices 21.03.2011 and 03.08.2011 were issued for demand of Rs.10,92,600 & Rs.8,13,000. In the first round of litigation, the Adjudicating Authority vide Order-in-Original No.65/ST/JP-11/2012 and 66/ST/JP-11/2012 both dt. 18.04.2012 respectively confirmed the demand. The Commissioner (Appeals) vide Common Order-in-Appeal dt. 24.10.2013 rejected both the appeals. In appeal, the Tribunal vide Final order dt. 06.04.2017 remanded the matter to the original authority for verification of the documents and to decide the issue. In the remand proceedings, the Adjudicating Authority vide Order-in-Original dt. 29.06.2018 allowed the exemption provided for GTA services and denied the exemption of service tax on Commission paid to Foreign/Overseas agents as provided in Notification No.18/2009 ST dt.07.07.2009 and confirmed the demand of Service tax of Rs.7,90,000 & Rs.5,41,600 along with interest and penalty. The Commissioner (Appeals) ....
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.... show cause notice dt. 03.08.2011 was concerned, all the facts were in the knowledge of the department as the earlier show cause notice dt. 21.03.2011 had been issued for the period October 2009 to March 2010. In support of her submission, she relied upon the decision of the Tribunal in the case of M/s LG Electronics India Pvt. Ltd. vs CCE -Final Order No. 70166/2024 dt.03.04.2024. Learned counsel also submitted that the demand confirmed in both the appeals was not sustainable. The appellant is also not liable to pay interest and the penalty imposed is liable to be set aside. In view of the submissions made above as well as in the appeal memo, the impugned order passed by the Commissioner (Appeals), confirming demand along with interest and imposing penalty was liable to be set aside. 4. Learned Authorized Representative for the Department while reiterating the findings of the impugned order, submitted that to claim exemption of service tax, the appellant must comply with all the conditions prescribed under the said Notification. As regards the penalty imposed under Section 76 of the Finance Act, he submitted that it was mandatory penalty and there was no requirement to prove me....
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....ed outside India and engaged under a contract or agreement or any other document by the exporter in India, to act on behalf of the exporter, to cause sale of goods exported by him. (1) The exporter shall declare the amount of commission paid or payable to the commission agent in the shipping bill or bill of export, as the case may be. (2) The exemption shall be limited to one per cent of the free on-board value of export goods for which the said service has been used. (3) The exemption shall not be available on the export of canalised item, project export, or export financed under lines of credit extended by Government of India or EXIM Bank, or export made by Indian partner in a company with equity participation in an overseas joint venture or wholly owned subsidiary. (4) The exporter shall submit with the half yearly return after certification of the same as specified in clause (g) of the proviso- (i) the original documents showing actual payment of commission to the commission agent; and (ii) a copy of the agreement or contract entered into between the commission agent located outside India and the exporter in relation to sale of export goods, out....
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....he 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; [F. No.341/15/2007-TRU] (Prashant Kumar) Under Secretary to the Government of India" 7. A perusal of the aforesaid notification read with the conditions and the Form EXP-2 reveals that an exporter, to claim exemption from service tax, has to file the documents in original viz, the consignment note issued in his name, the invoice, bill or challan, or any other document issued by the service provider to the exporter, on which the exporter intended to avail exemption specified in clause (b) and the certified copies of the documents specified in column (4) of the said Table. In the instant case, we find that the original adjudicating authority and the Commissioner (Appeals) have denied the exemption as the appellant did not produce the original documents viz., consignment note in his name/invoices/bills/challans issued to the Commission agent, copy of the agreement or contract with the Commission agent. It is an admitted fact that the shipping bills also did not incorporate the commission amount as required under the notificat....
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....1204/2025 dated 21 August, 2025. "5.6 The bare perusal of this notification also clarifies that the exemption to taxable service received by an exporter of goods and used for export of goods from the commission agent located outside India is subject to several conditions as mentioned in the notification. Apparently and admittedly, all the above said conditions have not been complied with by the appellants as the return in form EXP-4 were not filed as required. Hence the appellant was not entitled for the benefit of this notification as well." 11. Further, we find that the Constitution Bench of the Supreme Court in its judgment dated 30.07.2018 in the case of Commissioner of Customs vs Dilip Kumar and Company-AIR 2018 Supreme Court 3607 held that every taxing statue including, charging, computation and exemption clause should be interpreted strictly. Further, in case of ambiguity in an exemption provision, benefit must go to the Revenue. Thus, the 'burden of proof' is upon the taxpayer claiming the benefit of exemption or exception clause to prove the applicability of such exemption. The relevant paras are reproduced hereinafter for ease of reference: - ....
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....e paid under this Chapter or the rules made there under; • in a case where the service tax is provisionally assessed under this Chapter or the rules made there under, the date of adjustment of the service tax after the final assessment thereof; • in a case where any sum, relating to service tax, has erroneously been refunded, the date of such refund. 14. In the instant case, we note that the Notification 18/2009-ST in clause (c) of the conditions prescribes that the return i.e., EXP-2 is to be filed every six months within 15 days of the completion of the said six months. In the instant case, the period of demand was from October, 2009 to March, 2010 for which the said EXP-2 would have to be filed within 15 days i.e., by April 15, 2010. The demand notice had to be issued within one year from the relevant date, which in the instant case would be 14, April 2011. As the said notice was issued on 21.3.2011, which falls well within the normal period of demand, hence the demand under Section 73 is upheld. Similarly, in respect of show cause notice dated 03.08.2011, we note that the period involved is from April 2010 to September 2010, wherein the EXP-2 had to....