2019 (4) TMI 1558

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..... is legally not sustainable. Matter remanded to the Original Adjudicating Authority to restrict the demand to the normal period of demand under Section 73 (1) of the Finance Act, 1994 - appeal allowed by way of remand.
Shri C.L. Mahar, Member (Technical) And Ms. Rachna Gupta, Member (Judicial) Shri O.P. Agarwal, C.A. - for the appellant. Shri R.K. Majhi, Authorized Representative (DR) - for the Respondent. ORDER Per. C.L. Mahar :- The facts in brief are that the appellants are engaged in manufacture and export of guar gum powder and has availed services of foreign commission agents for booking of orders for export and in process have paid commission to such foreign agents who are not having any office in India. The department has .....

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..... ice is barred by the limitation as firstly, the required elements for invoking the extended time proviso namely fraud, collusion, willful mis-statement, suppression of facts or any contravention of the provisions of service tax law with an intention to evade duty are not present in this case. Since, there was a bonafide ignorance on the part of the assessees in view of the Circular issued by the CBEC dated 08/10/2001, wherein it has been clarified that the services provided beyond territorial waters of India are not liable to service tax and since the services in the present matter were availed and utilized beyond the territorial waters of India, the assessee had a bonafide belief that activity is not covered by Section 66A and, therefore, .....

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..... otice which came to be issued should have been issued for normal period of demand under Section 73 and not by invoking the extended time proviso. We therefore find that issue of the show cause notice by invoking extended time proviso is legally not sustainable, therefore, we remand back the matter to the Original Adjudicating Authority to restrict the demand to the normal period of demand under Section 73 (1) of the Finance Act, 1994. We also find that there is no valid ground for imposition of the penalty on the appellant as the department has already been seized with the matter and we do not find any suppression, mis-statement etc. with an intent to evade service tax or any violation of the provisions of the Finance Act by the appellant, .....

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