2024 (4) TMI 533 - AT - Service Tax

Recovery of service tax with interest and penalties - Reverse Charge Mechanism (RCM) - Commissions paid to a foreign service provider - non-discloser of detailed in the Shipping Bill - benefit of exemption under notification no. 18/2009-ST - suppression of facts or not - Extended period of limitation - HELD THAT - The appellant had filed the requisite details in the manner prescribed by the Notification with the jurisdictional authorities. Just for the reason that the same was not produced before the auditors at the time of audit cannot be ground for stating that these Forms were not filed. This fact could have been verified with jurisdictional officers. When all the details including the details of the shipping bill export invoices etc., were filed by the appellants in the manner as prescribed, revenue should have before issuance of the show cause notice demanding the duty, should have verified and replied to the audit. Admittedly the fact about commission paid by the appellant to the foreign service provider was not indicated by the appellant in the Shipping Bill as required under the said notification. However all the details as required under the notifications were made available by way of Form-EXP2 filed by the appellant. Extended period of limitation - Suppression of facts or not - appellant had not produced the copy of agreement with the foreign service provider and the relevant documents to audit at the time of audit - HELD THAT - Though these documents were in existence and were made available to revenue authorities even before the issuance of show cause notice. As all the information which was necessary to determine eligibility under Notification No.18/2009-ST was available with the Revenue and the prescribed Return/Form was filed by the appellant they could not have suppressed any fact from the Department for which extended period of limitation could have been invoked. Where merely a procedural violation in respect of complying with a condition of Notification cannot be said to be an act of suppression for invoking extended period of limitation. No justification for invoking extended period of limitation is forthcoming from the show cause notice, order in original or the impugned order. As the demand not sustainable on the ground of limitation, the issue on merits not discussed. Appeal allowed.

Summary

Issues Involved:
1. Confirmation of Service Tax Demand
2. Recovery of Demand with Interest
3. Imposition of Penalty u/s 77(1)(C) of the Finance Act, 1994
4. Setting Aside Penalty u/s 77(2) of the Finance Act, 1994
5. Imposition of Penalty u/s 78 of the Finance Act, 1994
6. Invocation of Extended Period of Limitation

Summary:

1. Confirmation of Service Tax Demand:
The Commissioner (Appeals) upheld the confirmation of the Service Tax demand amounting to Rs. 30,71,176/- u/s 73(2) of the Finance Act, 1994. The demand arose from the appellant's failure to pay Service Tax on the commission paid to a foreign service provider, LG Electronics Inc., Korea, under the reverse charge mechanism.

2. Recovery of Demand with Interest:
The Commissioner (Appeals) also upheld the recovery of the confirmed demand along with interest u/s 75 of the Finance Act, 1994. The appellant's non-compliance with the conditions of Exemption Notification No. 18/2009-ST was cited as the reason for the demand.

3. Imposition of Penalty u/s 77(1)(C) of the Finance Act, 1994:
The Department's appeal was allowed, and a penalty was imposed on the appellant u/s 77(1)(C) of the Finance Act, 1994.

4. Setting Aside Penalty u/s 77(2) of the Finance Act, 1994:
The penalty of Rs. 5000/- imposed on the appellant u/s 77(2) of the Finance Act, 1994, was set aside by the Commissioner (Appeals).

5. Imposition of Penalty u/s 78 of the Finance Act, 1994:
The penalty amounting to Rs. 30,71,176/- imposed u/s 78 of the Finance Act, 1994, was upheld by the Commissioner (Appeals).

6. Invocation of Extended Period of Limitation:
The Tribunal found that the demand was unsustainable due to the invocation of the extended period of limitation. The appellant had filed the requisite details in the manner prescribed by Notification No. 18/2009-ST with the jurisdictional authorities. The Tribunal held that mere procedural violations could not justify the invocation of the extended period of limitation. The Tribunal cited various judgments, including those of the Supreme Court and High Courts, to support the view that suppression of facts requires a deliberate act to evade tax, which was not evident in this case.

Conclusion:
The appeal was allowed on the ground of limitation, and the demand was found unsustainable. The Tribunal did not discuss the merits of the case due to the limitation issue.