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TMI Blog2024 (4) TMI 533X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 77(2) 5. I uphold the penalty imposed amounting Finance Act, 1994. to Rs. 30,71,176/- under Section 78 of the Finance Act, 1994." 2.1 The appellant is registered with the Department as a manufacturer of various consumer electronic goods and also as a service provider in respect of various taxable services namely Advertising Agency, Consulting Engineer, Maintenance & Repair Service, Business Auxiliary Service etc. 2.2 The appellant is exporting their produce to various countries and to promote their sales they have appointed a commission agent LG Electronics Inc, Korea. They entered into an agreement dated 01.01.2009, specifying the terms and conditions for engagement of the service provider. Appellants were required to pay service tax on the commission received under reverse charge mechanism but for Exemption Notification No.18/2009-ST by following the prescribed procedure. 2.3 Audit officers of AGUP, Lucknow conducted a an audit of the records of the appellant for the period April 2010 to March 2011. In the audit note communicated vide CERA No.52211-12 it was alleged that the appellant has not paid service tax amounting to Rs.30,71,176/- on account of commission of Rs.2,9 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... more than what is allowed under the notification. Reliance is placed on the decision in case of Toyo Engineering India Limited, 2006 (7) SCC 592 and in case of Calibre Chemicals Pvt. Ltd. [2021 (52) GSTL 618]. ➢ Appellant in Para 40 of the Reply to the Audit Report dated 12.06.2012 stated the Appellant has shown the copy of the agreement to the audit party and has also attached the copy of the agreement as Annexure D & E in the Reply to the Audit Report. Merely because the copy of the agreement could be produced instantly may not be the reason for disallowing the benefit of the Notification. ➢ all the facts establishing that the commission was paid for procurement of orders for goods exported are available then merely a failure to mention the commission amount in the shipping bills could not be the reason to disallow the benefit of the notification. Reliance is placed on the decision in case of Radian Textiles Ltd. [2017 (47) SRT 195.] ➢ Demand is beyond the limitation period, therefore, the same is not sustainable. complete facts were furnished by the Appellant in terms of the Notification No, 18/2009 in Annex 2 in time, therefore, due to mere failure ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... financial year 2009-10. They had not paid service tax on this amount as per Notification No 18/2009 dated 7.7.2009 and no export commission has been paid by them for the period 2010-11. The reply is not tenable as Notification no 18/2009 dated 7.7.2009 is not applicable in this case as bill of export on which the amount of commission paid was shown, copy of agreement and half yearly return to this concern etc. as was required under the above notification was not shown to audit. Therefore above service tax of Rs 30,71,176.00 was payable on the said commission which was not paid and therefore is recoverable from the assessee along with interest. The matter is brought to the notice of the Department for remedial action under intimation to audit." 4.3 After receipt of this audit objection deaprtment proceeded to issue show cause notice for the period from 2009-10 in 2013 invoking the extended period of limitation. In Para 7 of the show cause notice following has been observed:- "7. Whereas it appears that since the above fact of suppression and violation of provisions of Notification No. 18/2009 dated 07.07.2009 came to the notice of the department only at the time of audit. There ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Ministry of Commerce or the Ministry of Textiles, as the case may be; (iii) is a holder of Import-Export Code Number; (iv) is registered under section 69 of the said Act; (v) is liable to pay service tax under sub-section (2) of section 68 of said Act, read with sub-clause (iv) or sub-clause (v) of clause (d) of sub-rule (1) of rule 2 of the Service Tax Rules,1994, for the specified service; b) the invoice, bill or challan, or any other document issued by the service provider to the exporter, on which the exporter intend to avail exemption, shall be issued in the name of the exporter, showing that the exporter is liable to pay the service tax in terms of item (v) of clause (a); c) the exporter availing the exemption shall file the return in Form EXP2 every six months of the financial year, within fifteen days of the completion of the said six months; d) the exporter shall submit with the half yearly return, after certification, the documents in original specified in clause (b) and the certified copies of the documents specified in column (4) of the said Table; e) the documents enclosed with the return shall contain a certification from the exporter or the autho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ner having jurisdiction) Received Form EXP1 dated --/--/-- submitted by __________( name of the exporter). The said intimation is accepted and given acknowledgment No. _____ ( S. No. Above) For Assistant / Deputy Commissioner (Stamp)" Form- EXP2 [see Paragraph (c))] To, The Deputy Commissioner /Assistant Commissioner of Central Excise Sir, I/We have availed exemption of service tax under Notification No.18/2009-ST. dated 7th July, 2009 in respect of services, namely, the services provided for transport of said goods by road services provided by a commission agent, located outside India and have used the same for export of goods during the period from ...... to ..... and the relevant particulars are as follows. 1. Name of the exporter. 2. Address of the registered / head office of exporter 3. Tel. No. and e-mail ID of the exporter ........ 4. Service Tax Registration No. ....... 5. Division ......... Commissionerate ............... 6. Membership No. Of the Export Council 7. Import Export Code No.............. 8. Name of the Export Council 9. Details of Bank Account (Name of Bank, branch address and account number) Table-A S No ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uired document, duly certified, would debar me/us for the refund claimed aforesaid. Date: Place: Signature and full address of Exporter (Affix stamp) Enclosures: as above" 4.7 For availing the benefit of Notification No.18/2009-ST appellant was required to file details of export made against which they were claiming the benefit of exemption under the said notification. They have filed the details as detailed in the table below:- Period Date of filing EXP-2 Return July 2009-Sept.2009 13th Oct 2009 Oct.2009-Mar.2010 14th Apr.2010 Apr.2010-Sept.2010 15th Oct.2010 4.8 From the above it is evident that the appellant had filed the requisite details in the manner prescribed by the Notification with the jurisdictional authorities. Just for the reason that the same was not produced before the auditors at the time of audit cannot be ground for stating that these Forms were not filed. This fact could have been verified with jurisdictional officers. When all the details including the details of the shipping bill export invoices etc., were filed by the appellants in the manner as prescribed, revenue should have before issuance of the show cause notice demanding the duty, s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... duty, it was not open to the Central Excise Officer to proceed to recover duties in the manner indicated in proviso to Section 11A of the Act. We are, therefore, of the firm opinion that where facts were known to both the parties, as in the instant case, it was not open to the CEGAT to come to a conclusion that the appellant was guilty of "suppression of facts". In Densons Pultretaknik v. Collector of Central Excise [2003 (11) SCC 390], this Court held that mere classification under a different sub-heading by the manufacturer cannot be said to be willful mis-statement or "suppression of facts". This view was also reiterated by this Court in Collector of Central Excise, Baroda v. LMP Precision Engg. Co. Ltd. [2004 (9) SCC 703]." 4.12 Hon'ble Supreme Court in the case of Continental Foundation Jt Venture [2007 (216) ELT 177 (SC)] held as follows: "10. The expression "suppression" has been used in the proviso to Section 11A of the Act accompanied by very strong words as 'fraud' or "collusion" and, therefore, has to be construed strictly. Mere omission to give correct information is not suppression of facts unless it was deliberate to stop the payment of duty. Suppression means fai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aid by the assessee in respect of the clearances of MS tanks and radiators to its transformer unit was available to the transformer unit as Cenvat credit. In other words, the Cenvat credit was available not to a third party buyer of the assessee's manufactured goods but to the assessee itself in its transformer unit. Since the situation was revenue neutral, this was an additional ground which weighed with the Tribunal to hold that the extended period could not be invoked. 6. Having considered the judgment of the Tribunal, we see no reason to interfere with the finding of fact that if a scrutiny had been made by the Range Officer of the ER-1 returns, that would have revealed that the assessee had cleared its MS tanks and radiators to the owning company for the manufacture of transformers. This indicated that there was no fraud, collusion, misstatement or suppression of facts. Besides, since the situation was revenue neutral, no intent to evade the payment of duty could be ascribed to the assessee. Once, there was no intent to evade the payment of duty, the Tribunal was justified in coming to the conclusion that the extended period of limitation under the proviso to Section 11A(1) ..... X X X X Extracts X X X X X X X X Extracts X X X X
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