TaxTMI 
TaxTMI 
2026 (10) TMI 12
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....es for the financial year 2010-2011 to 2012-2013. Appellant is an exporter of spices and they have taken assistance from foreign agents for arranging sale in abroad as part of their routine business. During audit in the year 2013, it is alleged that the appellant is liable to pay service tax on RCM basis for the services availed from the foreign agents. To avoid delay in clearing the exported goods, appellant was forced to pay service tax with interest as applicable. Thus, the payment of service tax was not voluntarily, and it is paid only to avoid the audit objection and avoid delay in clearing the exported goods. Thereafter, when appellant came to know that the service provided by an overseas agent which is coming under Business Auxiliary....
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.... 107 dated 09.02.2013. In Appeal No. ST/20193/2017, appellant has filed refund claim for an amount of Rs. 3,47,767/- for the year 2012-2013. 3. Learned Consultant further submits that as per Notification No. 18/2009-ST dated 07.07.2009, service provided by a Commission Agent located 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 is exempted subject to the conditions mentioned in column No.4 of the said Notification. Learned Consultant further submits that as per the findings in the impugned order, the reason for rejecting the refund is that they have not filed Form EXP1 (before availing the exemption) and Half....
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....in the contract and it is subject to the availability of the product in the market. In such cases, it is not possible to make endorsement regarding exact commission amount in the shipping bill. To substantiate the above, learned Consultant draws our attention to the contract entered by the appellant with overseas agencies. 5. Learned AR reiterated the findings in the impugned order and submits that as per the Notification, the upper limit for service tax exemption is 1% and in appellant's case, the exemption paid to the service provider is ranging up to 5% as stated in the Order-in-Original. Thus, the refund claimed by the appellant is not sustainable as per the said Notification. Learned AR also draws our attention to the decision of th....
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....n the parameters of the exemption clause or exemption notification. (2) When there is ambiguity in exemption notification which is subject to strict interpretation, the benefit of such ambiguity cannot be claimed by the subject/assessee and it must be interpreted in favour of the revenue. (3) .... .." 14. In view of the above discussion, we do not find any merit in the appellant's case and consequently, the appeal is dismissed." 6. In rejoinder, learned Consultant submits that though the upper limit of claiming refund was restricted to 1% of the service tax, as per the Circular issued by the Board vide Circular No. 118/12/2009-ST dated 23.11.2009 it is clarified that : "3. The current rate of ....
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....- 2014 (34) S.T.R. 207 (Tri.-Del.) 8. Heard both sides. It is an admitted fact that at the time of export of the goods, the appellant was liable to pay service tax and exemption was subject to compliance of the conditions as per the Notification No. 18/2009 dated 07.07.2009. However, when audit pointed out the issue, they have paid the amount with interest and therefore, made the claims regarding refund of the said amount which is according to them are paid without any authority of law. I find that though the payment has made at belated stage, if the exemption notifications are subject to condition and if conditions are not complied, they are liable to pay service tax on RCM basis. Fact being so, the appellant is bound to comply with the....
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....requirement, which is a procedural compliance for extending the benefit of exemption notification, same can be condoned as held by this Tribunal in various other cases. 9. Considering the facts and circumstances of the case, I find that it is a fit case for remanding the matter to the adjudication authority to consider the issue afresh and to pass appropriate order in accordance with law. Accordingly, impugned orders are set aside. Regarding reason for non-endorsement of the commission payable by them in the shipping bill, Appellant is directed to produce entire documents as relied by them while making submissions before this Tribunal to substantiate their claim of refund and if adjudication authority is satisfied with the submission mad....