2023 (5) TMI 722 - AT - Service Tax

Denial of exemption - Demand beyond the scope of the Show Cause Notice (SCN) - Exemption under N/N. 18/2009 - ST dated 07.07.2009 and N/N. 31/2012 - ST dated 20.06.2012 - Procurement of GTA service for export - failure to file the shipping bills/bills of export and failure to file the details of use of subject services in exports - demand alongwith interest and penalty - HELD THAT - There is no dispute as regards to the actual export of goods by the Appellant, which indicates that the Appellant has exported goods and availed GTA services for the same. A plain reading of the provisions of N/N. 31/2012 dated 20.06.2012 indicates that in order to avail the exemption enshrined in the said notifications, the appellant had to satisfy the condition indicated in Column 4 of the table. The said condition is that the exporter will have to produce the consignment note, or any document issued in his name, to claim the exemption - In the instant case, it is noted that the primary condition for seeking exemption for GTA, the requirement is to produce a consignment note, and for the commission agent, the amount is required to be indicated. There is neither any allegation in the show cause notice nor any finding in the impugned order that the appellant did not export the goods or that there was no consignment note, or any other document in his name. Therefore, the essential condition for availing the benefit of the said exemption notification stands satisfied. The exporter had to file the half yearly return within 15 days of the completion of the said six months. The notification also required the appellant enclose documents as indicated in the Table A and Table B of the return EXP-2 - When the return itself requires the details, there is no requirement for the show cause notice to specify in the said details, as has been submitted by the learned counsel for the appellant. It is seen that in COMMISSIONER OF CUSTOMS (IMPORT) , MUMBAI VERSUS M/S. DILIP KUMAR AND COMPANY ORS. 2018 (7) TMI 1826 - SUPREME COURT , the Supreme Court is categorical in holding that an exemption notification should be interpreted strictly and the burden of proving applicability would be on the assessee to show that his case comes within the parameters of the exemption clause or exemption notification - the appellant has complied with the notification condition as enumerated in column 4 of the aforesaid table. In view of the same, the demand of duty and interest is set aside. Penalties u/s 77 and 78 of the Finance Act - HELD THAT - Penalty under section 78 is imposed when there is a willful intention to evade the payment of tax. The delay in filing of the return for claiming the exemption cannot be termed as willful intention to evade payment of duty. Therefore, the penalties imposed under section 78 of the Act are set aside - the appellant was very prompt when filing the intimation for seeking the exemption under the said notifications, but did not show similar promptness while filing returns. It is also seen that while filing the returns, the appellant did not take due care to file the data/documents as required, despite having undertaken to file the same. Consequently, the penalty under section 77 is upheld for failure to file the returns in time. Appeal allowed in part.

Summary

Issues Involved:

1. Demand of Service Tax and Interest
2. Penalty under Section 77 and Section 78 of the Finance Act, 1994
3. Procedural Lapse in Filing Returns and Documents
4. Applicability of Exemption Notifications No. 18/2009-ST and No. 31/2012-ST

Summary:

1. Demand of Service Tax and Interest:

The Appellant, engaged in manufacturing graphite electrodes, filed an appeal against the Order-in-Appeal dated 31.07.2017, which confirmed the demand of service tax of Rs. 37,89,292/- and Rs. 16,82,906/- for the periods from April 2012 to March 2013 and April 2013 to September 2013, respectively, along with interest under Section 75 of the Finance Act, 1994. The Appellant had claimed exemption from service tax under Notification No. 18/2009-ST and Notification No. 31/2012-ST for services used in the export of goods. The Department issued two Show Cause Notices alleging that the Appellant wrongly claimed exemptions due to untimely and improperly filed EXP-2 returns.

2. Penalty under Section 77 and Section 78 of the Finance Act, 1994:

The original order imposed penalties under Sections 77 and 78 but refrained from imposing a penalty under Section 76. The Commissioner (Appeals) upheld this, confirming penalties for alleged procedural lapses. The Tribunal noted that the delay in filing returns could not be termed as willful intention to evade tax, thus setting aside the penalty under Section 78 but upholding the penalty under Section 77 for failure to file returns in time.

3. Procedural Lapse in Filing Returns and Documents:

The Appellant argued that the procedural lapses, such as delayed filing of EXP-2 and not enclosing mandatory documents, should not deny the substantive benefit of the exemption notifications. The Tribunal acknowledged that procedural lapses are condonable if the substantive conditions are met. The Appellant had complied with the primary condition of producing consignment notes and exporting goods, thus satisfying the essential condition for exemption.

4. Applicability of Exemption Notifications No. 18/2009-ST and No. 31/2012-ST:

The Tribunal referred to relevant case laws, including Coromandel Stampings & Stones Ltd. and Radiant Textiles Ltd., which supported the view that procedural lapses should not deny substantial benefits if the primary conditions of the notification are met. The Tribunal found that the Appellant had complied with the essential conditions of the notifications and thus set aside the demand of duty and interest upheld in the impugned order.

Conclusion:

The Tribunal partially allowed the appeal, setting aside the demand of service tax and interest, and the penalty under Section 78. However, the penalty under Section 77 was upheld due to the Appellant's failure to file returns in time. The order-in-appeal was modified accordingly.