2024 (2) TMI 18 - AT - Service Tax

Recovery of service tax - GTA Service or not - amount of freight paid for the inward of the goods - suppression of facts or not - Time limitation - HELD THAT - A plain reading of Notification 31/2012 dated 20.06.2012 makes it clear that exemption from service tax is provided under reverse charge to an exporter for the transport of goods from any Inland Container Depot to a port or Place of removal to ICD. It is noted that the said notification does not provide any exemption for the receipt of goods into the factory. Consequently, any availment of exemption of service tax on such inward receipt of goods is incorrect. Time Limitation - HELD THAT - From the facts as recorded in the impugned order, it is apparent that the appellant was filing his ST-3 returns and the returns in the form EXP-2 regularly. It has been alleged in the impugned order that the appellant had submitted the EXP-2 and ST-3 returns to the Commissioner(Appeals) who has rejected the same by holding that the appellant had failed to file invoices along with the returns - once the EXP-2 was filed, the responsibility lies with the Department to examine/ scrutinise the returns in a timely manner, and point out any shortfall/discrepancies to the exporter/appellant. The Department never raised any the objection regarding any irregularity or highlight that invoices were not filed. Further, the Department has not brought any evidence on record to show that the appellant had suppressed any material fact in order to evade the payment of service tax. This was not done and thereafter to allege suppression with an intent to evade payment of tax to justify the demand cannot be upheld. The demand is barred by limitation. Accordingly, the impugned order is set aside - Appeal allowed.

Summary

Issues Involved:
1. Validity of Service Tax Demand
2. Application of Extended Period of Limitation
3. Exemption under Notification No. 31/2012-ST
4. Allegation of Willful Suppression of Facts

Summary:

1. Validity of Service Tax Demand:
The appellant, M/s Baba Super Minerals Pvt. Ltd., challenged the order by the Commissioner (Appeals) which confirmed the service tax demand of Rs. 31,989/- for the period April 2016 to June 2017. The appellant argued that the demand was based on an incorrect factual matrix and contrary to the settled position of law.

2. Application of Extended Period of Limitation:
The appellant contended that the extended period of limitation under Section 73(1) of the Finance Act, 1994 could only be invoked in cases of fraud, collusion, mis-statement, or suppression of facts with intent to evade payment of service tax. The appellant maintained that all relevant details were disclosed in their financial statements, ST-3 returns, and EXP-2 forms, negating any charge of suppression. The Tribunal referenced several judgments, including "Continental Foundation Jt. Venture Vs. CCE, Chandigarh-I" and "Uniworth Ltd. Vs. CCE, Raipur," to support the appellant's claim that mere omission or non-payment does not equate to willful mis-statement or suppression.

3. Exemption under Notification No. 31/2012-ST:
The appellant argued that the exemption under Notification No. 31/2012-ST applied to their case, as they had filed all necessary documents and returns. However, the Authorized Representative for the respondent countered that the exemption only applied to the transport of goods for export, not for inward receipt of goods. The Tribunal examined the notification and concluded that it did not provide any exemption for the receipt of goods into the factory, making the appellant's claim for exemption incorrect.

4. Allegation of Willful Suppression of Facts:
The Tribunal found that the appellant had regularly filed EXP-2 and ST-3 returns, and the Department had not raised any objections or highlighted any discrepancies at the relevant time. Citing the Supreme Court's judgment in "M/s Anand Nishikawa Co. Ltd vs Commissioner of Central Excise, Meerut," the Tribunal emphasized that suppression of facts must be deliberate and willful to evade payment of duty. The Department failed to provide evidence of any deliberate suppression by the appellant.

Conclusion:
The Tribunal held that the demand was barred by limitation and set aside the impugned order, allowing the appeal. The judgment underscores the importance of timely scrutiny by the Department and the necessity of clear evidence for allegations of willful suppression.