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2024 (1) TMI 637 - AT - Service TaxNon- payment of service tax - goods transport agency service under reverse charge mechanism for the goods exported - time limitation - HELD THAT - This Tribunal in the case of M/S. N.M. ZACKRIAH CO. VERSUS COMMISSIONER OF SERVICE TAX CHENNAI-III COMMISSIONERATE 2023 (9) TMI 80 - CESTAT CHENNAI has recently decided that in such a situation under Notification No. 18/2009 ibid cannot be entitled to the appellant. Therefore, on merit, the appellant is not entitled to take the benefit of Notification No. 18/2009 dated 07.07.2009. Time Limitation - HELD THAT - It is a case of revenue neutral situation where whatever service tax is to be paid by the appellant, the same is entitled as Cenvat credit or refund under Rule 5 of Cenvat Credit Rules, 2004, as the appellant being exporter. In that circumstances, the mala fide intentions of the appellant are missing. In that circumstances, extended period of limitation is not invokable as held by this Tribunal in the case of M/S. SATYAM ENTERPRISES VERSUS CCE ST, JAIPUR. 2017 (8) TMI 1718 - CESTAT NEW DELHI - thus, the extended period of limitation is not invokable. The impugned order set aside - appeal allowed.
Issues involved: Appeal against demand of service tax on goods transport agency service under reverse charge mechanism for goods exported, challenge on grounds of non-filing of EXP-1 and EXP-2 returns, revenue neutrality argument, limitation of the demand.
Summary: Issue 1: Demand of service tax on goods transport agency service under reverse charge mechanism for goods exported The appellant, a manufacturer and exporter, appealed against a demand of service tax for non-payment of service tax on goods transport agency service under reverse charge mechanism. The appellant had shown taxable freight and cartage expenses during a specific period, leading to the demand. The matter was adjudicated, and the demand of service tax was confirmed, along with interest and penalty. The appellant contended that they were entitled to exemption under a specific notification and that the non-filing of certain returns should not bar them from availing the benefit. Issue 2: Non-filing of EXP-1 and EXP-2 returns and revenue neutrality argument The appellant argued that the non-filing of EXP-1 and EXP-2 returns should not prevent them from benefiting from the exemption notification, as it was a procedural lapse. They claimed that the entire exercise was revenue neutral, as they were entitled to take Cenvat credit of the service tax paid, which was refundable. The appellant asserted that there was no mala fide intention not to pay the service tax on transportation of goods, citing relevant tribunal decisions to support their case. Issue 3: Limitation of the demand The appellant contended that the demand was barred by limitation, as the show cause notice was issued after an extended period. They argued that since the service tax was refundable or eligible for credit, there was no mala fide intention on their part. The appellant relied on tribunal decisions to support their argument that the extended period of limitation should not be invoked in this case. In the judgment, the Member (Judicial) considered the arguments presented by both sides. It was held that the appellant was not entitled to the benefit of the exemption notification due to the non-filing of certain returns. However, on the issue of limitation, it was found that the case involved a revenue neutral situation, and there was no mala fide intention on the part of the appellant. Citing relevant tribunal decisions, the Member concluded that the extended period of limitation should not be invoked. Consequently, the impugned order was set aside, and the appeal was allowed with consequential relief to the appellant.
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