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TMI Blog2023 (5) TMI 722X X X X Extracts X X X X X X X X Extracts X X X X ..... ignment note, and for the commission agent, the amount is required to be indicated. There is neither any allegation in the show cause notice nor any finding in the impugned order that the appellant did not export the goods or that there was no consignment note, or any other document in his name. Therefore, the essential condition for availing the benefit of the said exemption notification stands satisfied. The exporter had to file the half yearly return within 15 days of the completion of the said six months. The notification also required the appellant enclose documents as indicated in the Table A and Table B of the return EXP-2 - When the return itself requires the details, there is no requirement for the show cause notice to specify in the said details, as has been submitted by the learned counsel for the appellant. It is seen that in COMMISSIONER OF CUSTOMS (IMPORT) , MUMBAI VERSUS M/S. DILIP KUMAR AND COMPANY ORS. [ 2018 (7) TMI 1826 - SUPREME COURT] , the Supreme Court is categorical in holding that an exemption notification should be interpreted strictly and the burden of proving applicability would be on the assessee to show that his case comes within the parameters ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... taxable services such as Business Auxiliary service, Banking Financial Service, Cargo Handling service, Consulting Engineers services, Legal service and Renting of Immovable property service, Goods transport agency service etc. 3. The Appellant filed four EXP-1s on 02.04.2012 and another one on 03.04.2013 in the office of the Deputy Commissioner, Central Excise Service Tax, Division-II, Bhopal intimating their intention to avail exemption from service tax under Notification No. 18/2009 dated 07.07.2009 in respect of four services namely Banking Financial services, Goods Transport Agency service, Consulting Engineering service and Business Auxiliary services. 4. The Department vide letters dated 15.10.2012 and 15.04.2013 informed the Appellant that the return has to be filed by the Appellant in form EXP-2. Thereafter, the Division office and Range office sought particulars of payment of service tax. 5. In response, the Appellant filed the return in form EXP-2 on 16.08.2013 in the office of Deputy Commissioner, Central Excise, Division- II, Bhopal for the period April 2012 to March 2013 for transport of the said goods by Goods Transport Agency services GTA service. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... odes and has used GTA service for transportation of the said goods to port of export. Therefore, the Appellant availed exemption from service tax on taxable services received by them under Notification No. 18/2009-ST dated 7.7.2009 and Notification No. 31/2012 dated 20.06.2012. 10. He submitted that the impugned order traveled beyond the scope of the show cause notice and is required to be set-aside. He submitted that show cause notice is the foundation of the case and since the appellate authority had taken note of the fact that the information/documents were not in the proper format of table A and table B as required in the return EXP-2. He contended that there were no allegations in the show cause notice with respect to the failure to file the shipping bills/bills of export and failure to file the details of use of subject services in exports. 11. He further contended that the said Notifications grant exemption from service tax in respect of GTA services provided to an exporter for transport of goods by GTA in a goods carriage from any container freight station or inland container depot to the port or airport, as the case may, from where the goods are exported or services ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... emption/refund/rebate etc. are export oriented schemes. If the fact of export has been established, refund is not to be denied on merely technical interpretation of procedures. In Suksha International Vs. Union of India - 1989 (39) E.L.T. 503 (S.C.) the Hon'ble Apex Court has observed that an interpretation unduly restricting the scope of beneficial provision is to be avoided, so that it may not take a way with one hand, what the policy gives with the other. The Hon'ble Apex Court in Mangalore Chemicals and Fertilizers Ltd. Vs. Dy. Commissioner, 1991 (55) E.L.T. 437 (S.C.) while drawing a distinction between procedural condition of a technical nature and substantive condition, held that procedural conditions of technical nature can be condoned. The procedures prescribed in the notification are to facilitate verification of the claims. Since there is no dispute with regard to the export made or the service tax paid, the nonfulfilment of the conditions in my view is condonable. Following the judgments laid in the above cases, I am of the view that the nonfulfilment of the conditions is only a procedural lapse and can be condoned. In view thereof, I hold that the appellants ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Indeed, such adjustment has been permitted by the CESTAT in BSNL s own case cited in the earlier para. In the present case there has been no mala fide on the part of the appellant as is evident from the fact that the adjudicating authority refrained from imposing any penalty observing that he appellant acted in a bona fide manner and mala fide cannot be attributed to them. (emphasis supplied) 17. Therefore, applying the ratio of the case laws above, it was submitted that substantive benefit cannot be denied due to mere procedural lapse. Reliance was also placed on the decision of Appellant itself reported at HEG Ltd. Vs. Commissioner of Customs, Central Excise and Service Tax, Bhopal 2019 (7) TMI 773-CESTAT, New Delhi wherein exemption benefit has been allowed under Notification No. 18/2009-ST under similar circumstances including late filing of the aforesaid returns. 18. Further, in various decisions, the exemption benefit has been allowed under the aforesaid notifications even in cases where the return in Form EXP-2 has not been filed. Few of such decisions are cited as under: Radiant Textiles Ltd. Vs. Commissioner 2016 (10) TMI 242 (Tri.-Chand.) Orie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ertaining to sub-clauses of clause (105) of section 65 of the said Act specified in the corresponding entry in column (2) of the said Table, from the whole of the service tax leviable thereon under section 66 and section 66A of the said Act, subject to the conditions specified in column (4) of the said Table, namely Sl No 1 Sub-clause 2 Description of the taxable service 3 Conditions 4 1 zzp Service provided to an exporter for transport of the said goods by road from any container freight station or inland container depot to the port or airport, 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, a 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 pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 per cent. shall be paid within the period specified under rule 6 of the Service Tax Rules, 1994; 22. Further, in order to appreciate the arguments of the learned counsel, we reproduce the EXP-1 EXP-2 format for ease of reference; Form- EXP-1 - S. No------- To, The Deputy Commissioner /Assistant Commissioner of Central Excise Sir, I/We intend to avail the exemption from service tax under Notification No.18/2009-ST, dated in respect of services for transport of said goods by road or services provided by a commission agent located outside India, which have been used for export of goods and the relevant particulars are as follows. 1. Name of the exporter. 2. Service Tax Registration No. 3. Division Commissionerate 4 Membership No. the Export Council 5 Name of the Export Council 6. Address of the registered / head office of exporter: 7. Tel. No. and e- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Details of specified services used for export of goods, covered under he Shipping Bill or Bill of Export mentioned in Table A in respect of which the exemption has been availed during the six months ending on.............................. Details of Documents attached showing the use of such services for export, the details of which are mentioned in Table A (self attested) Total amount of service tax claimed as exemption Name of the service provider Address of the service provider Invoice no Date Description of services Classification of the service under the Finance Atc, 1994 9. Declaration:-I / We hereby declare that- (i) I have complied with all the conditions mentioned in notification No18/09-ST, dated 7th July, 2009; (ii) the information given in this application form is true, correct and complete in every respect and that I am authorised to sign on behalf of the exporter; (iii) no CENVAT credit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ication. It is observed that the appellant was very prompt in filing this intimation format before availing the exemption. The appellant undertook to comply with all the conditions mentioned therein, including filing of half yearly returns within the specified period. However, when it came to the actual filing the said return for compliance verification by the department, the appellant did not show the much-needed promptness. We find that the department had issued several reminders for filing the said return, but the appellant did not feel it necessary to respond to these letters. Our attention was drawn to the earlier decision of this Tribunal in the Appellant s own case HEG Ltd vs Commissioner of Customs, Central Excise Service Tax, Bhopal [2019(7) TMI 773-CESTAT, New Delhi]. The benefit of the exemption notification was extended to the appellant despite their delay in filing the required returns. The Tribunal opined that the mere procedural lapse which admittedly is on account of non availability of shipping bills due to delay on the part of Customs cannot be the ground to deny the substantial benefit of the notification. As has been observed previously, the appellant was very ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ubject/assessee and it must be interpreted in favour of the revenue . 27. It is seen that the above decision, as relied upon by the learned authorised representative, the Supreme Court is categorical in holding that an exemption notification should be interpreted strictly and the burden of proving applicability would be on the assessee to show that his case comes within the parameters of the exemption clause or exemption notification. As already held above, we find that the appellant has complied with the notification condition as enumerated in column 4 of the aforesaid table. In view of the same, we set aside the demand of duty and interest upheld in the impugned order. 28. We now come to the penalties imposed under section 77 and 78 of the Finance Act on the appellant. Penalty under section 78 is imposed when there is a willful intention to evade the payment of tax. The delay in filing of the return for claiming the exemption cannot be termed as willful intention to evade payment of duty. Therefore, we set aside the penalties imposed under section 78 of the Act. 29. However, as observed previously, the appellant was very prompt when filing the intimation for seekin ..... X X X X Extracts X X X X X X X X Extracts X X X X
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