2013 (6) TMI 338 - AT - Service Tax

Provision of services to SEZ - exemption by way of refund mechanism - non payment of service tax - Notification no. 9/2009-ST dated 3-3-2009 - Held that - when only during the gap of 2 months the appellant did not pay the Service Tax and it was available as refund to the recipient, the question of having any intention to evade duty does not arise and therefore the Show Cause Notice issued on 19-10-2010 to recover the Service Tax from 3-3-2009 to 20-5-2009 was time-barred. Under these circumstances, the extended period could not have been invoked and penalty could not have been imposed and further legally also, it can be argued that the intention of the Government was to provide exemption and tax could not have been demanded during the relevant period. - Decided in favor of assessee.

Summary

Issues:
1. Liability of the appellant to pay Service Tax on services provided to SEZ units.
2. Applicability of exemption notifications and refund mechanism.
3. Invocation of extended period for recovery and imposition of penalties.

Analysis:

Issue 1: Liability of the appellant to pay Service Tax on services provided to SEZ units
The case involved the appellant providing services to SEZ units, specifically Manpower Recruitment & Supply Agency services, without paying the corresponding Service Tax. The appellant argued that there was an oversight in the exemption provision during a specific period, and the recipient could have claimed a refund for the Service Tax paid. The appellant contended that there was no intention to evade duty, and hence, the Show Cause Notice issued for recovery of Service Tax was time-barred.

Issue 2: Applicability of exemption notifications and refund mechanism
The Tribunal noted that there was an exemption available before and after the relevant period, but due to an oversight, the exemption provisions were omitted during the specific timeframe. The Tribunal observed that even if the appellant had paid the Service Tax, the recipient could have claimed a refund. It was argued that the intention of the Government was to provide exemption during the relevant period, and hence, tax demand could not be enforced.

Issue 3: Invocation of extended period for recovery and imposition of penalties
The Tribunal held that the extended period for recovery could not have been invoked in this case. It was emphasized that penalties should not have been imposed. The Tribunal concluded that the appellant had established a prima facie case for waiver, and therefore, waived the requirement of pre-deposit of the confirmed dues during the appeal's pendency. A stay against the recovery of the dues was granted based on the findings.

In the final order, the Tribunal ruled in favor of the appellant, considering the oversight in exemption provisions, the availability of refund mechanism, and the absence of intent to evade duty. The Tribunal granted relief to the appellant by waiving the pre-deposit requirement and staying the recovery process.