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TMI Blog2019 (8) TMI 1692X X X X Extracts X X X X X X X X Extracts X X X X ..... ion. The Assistant Commissioner/Deputy Commissioner has not objected the appellant s claim regarding the exemption Notification. Therefore, finding of the Commissioner (Appeal) that the shipping bills/bill of export has not been produced is an incorrect appreciation of the conditions of the said Notification. The payment made by the appellant towards the service tax, in duress, will not be sufficient to deny exemption to the appellant - reliance can be placed in the case of M/S PRAJ INDUSTRIES LTD. VERSUS COMMISSIONER OF CENTRAL EXCISE, PUNE-III [ 2017 (4) TMI 1286 - CESTAT, MUMBAI] where it was held that Reading of the notification shows that the conditions are regulatory in nature and not mandatory to avail the exemption. If the procedure prescribed is not fulfilled there would be no consequence of denial of the benefit of the notification. Appeal allowed - decided in favor of appellant. - Service Tax Appeal No. 54839 of 2014-[DB] - Final Order No: 51432 /2019 - Dated:- 21-8-2019 - MR. DILIP GUPTA, PRESIDENT AND MR. BIJAY KUMAR, MEMBER (TECHNICAL) Shri Manish Saharan, Advocate for the appellant Shri R K Manjhi, Authorized Representative for the respondent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vered under the proviso to Section 73 (1) of the Act, invoking the extended period along with penalty under Section 76, 78 and interest under Section 75 of the Act. The show cause notice was adjudicated by the adjudicating authority and demands were confirmed and service tax paid was appropriated, as the same was paid prior to issue of show cause notice. The Adjudicating Authority also imposed penalty of an equivalent amount along with leviable interest under Section 78 and 75 of the Act, respectively. The Adjudicating Authority, however, refrained from imposing penalty under Section 76 of the Act as penalty was imposed under Section 78 of the Act (with effect from 01.04.2008). Being aggrieved, the appellant filed an appeal before the Commissioner (Appeals), who vide impugned order sustained the order passed by the Adjudicating Authority. 3. Learned Advocate on behalf of the appellant submits as under; (a) That the appellant was eligible to avail the exemption from payment of service tax in terms of Notification No. 18/2009-ST dated 07.07.2009, as the terms were fully complied with. The investigating officer has deliberately not followed the conditions of the Notification and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed Commissioner (Appeals). The Commissioner (Appeals) passed the impugned order in complete disregard to the legal provisions. Accordingly, learned advocate requests for setting aside the impugned order and allowing the appeal. 4. Learned Authorised Representative on behalf of Revenue, however, supported the findings contained in the impugned order. 5. We have considered the rival submissions and also perused the appeal records. 6. It is accepted fact that the appellant is registered with the service tax Department and engaged in providing services under BAS and GTS, as defined under Section 65 of the Act and liable to pay the service tax under Section 66 A of the Act as amended. The commission agent is defined Section 65(19) as any person who acts on behalf of another person and causes sale or purchase of the goods or provision or receipt of the service, for consideration and includes any person, who is acting on behalf of another person . Similarly, the taxable service is defined under Section 66 A of the Act, read with Rule 2 (d) (iv) of Service Tax Rules, 1994 and Rule 3 of the Taxation of the services (provided from outside India received in India) Rules, 2006. Secti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... irport, as the case may be from where the goods are exported; or Service provided to an exporter in relation to transport of said goods by road directly from their place of removal, to an inland container depot, a container freight station, as port or airport, as the case may be, from where the goods are exported. The exporter shall have to produce the consignment note, by whatever name called, issued in his name. 2. (zzb) Service provided by a commission agent located outside India and engaged under a contract or agreement or any other document by the exporter in India, to act on behalf of the exporter, to cause sale of goods exported by him. (1)The exporter shall declare the amount of commission paid or payable to the commission agent in the shipping bill or bill of export, as the case may be. (2) The exemption shall be limited to one per cent of the free on board value of export goods for which the said service has been used. (3) The exemption shall not be available on the export of canalised item, project export or export financed under lines of cre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pecific shipping bill number on the said document. (f) where the exporter is a proprietorship concern or partnership firm, the documents enclosed with the return shall be certified by the exporter himself and where the exporter is a limited company, the documents enclosed with the return shall be certified by the person authorised by the Board of Directors; (g) where the amount of service tax in respect of the service specified against serial No. 2 of the Table exceeds one per cent. of the free on board value of the export then, the amount in excess of the said one percent shall be paid within the period specified under rule 6 of the Service Tax Rules, 1994; 8. The Notification exempts the services provided by the commission agent located outside India and engaged under contract or agreement or any document by the exporter to act on their behalf for sale of the exported goods. The conditions for availment of the Notification are prescribed in the Notification itself. It is on record that the appellant has complied with all the conditions, as prescribed in the Notification and also filed EXP-1 declaration and EXP-2 Returns appropriately. Learned Commissioner (Appeal) has re ..... X X X X Extracts X X X X X X X X Extracts X X X X
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