9911796707
TMI Blog2024 (9) TMI 777X X X X Extracts X X X X X X X X Extracts X X X X ..... - time limitation - HELD THAT:- It is observed that this demand has been raised for the period from 2007-08 to 2010-11 and the show cause notice was issued only on 18.04.2013 beyond the normal period of limitation; the appellant has been filing returns regularly and declaring about the expenditure incurred towards foreign currency in their Annual Financial Statements - the issue is revenue neutral as the service tax paid under reverse charge would be available to the appellant as credit to them. When the issue is revenue neutral, extended period of limitation cannot be invoked to demand Service Tax from the assessee - the demand of Service Tax confirmed by invoking the extended period of limitation is not sustainable. Demand of Service Tax ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l allowed. - HON BLE SHRI R. MURALIDHAR , MEMBER ( JUDICIAL ) And HON BLE SHRI K. ANPAZHAKAN , MEMBER ( TECHNICAL ) Shri Sushil Kumar Goyal , Chartered Accountant for the Appellant Shri Faiz Ahmed , Authorized Representative for the Respondent ORDER ORDER : [ PER SHRI K. ANPAZHAKAN ] M/s. Maple Exports Private Limited, 83/2/1, Topsia Road (South), Continental, 9th Floor, Kolkata 700 046 (hereinafter referred to as 'the appellant ) is a merchant exporter of leather goods . During the course of export of their products, the appellant had spent some money in convertible foreign exchange for procurement of goods as well as for availing certain services required for the purpose of export. 2. Upon scrutiny of the Annual Financial Accounts o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 1,07,18,332/- 12,29,700/- Other Charges 1,87,483/- 19,310/- TOTAL 51,68,799/- 4.1. Regarding the demand of Service Tax of Rs.39,19,789/-pertaining to the commission paid to the foreign agents under the category of business auxiliary service , the appellant submits that they were under the bona fide belief that no service tax was payable on the commission as they were eligible for the exemption in terms of Notification No.41/2017-S.T. dated 06.10.2007, as amended by Notification No. 17/2008-S.T. dated 01.04.2008; these Notifications provide exemption by way of refund. 4.2. The appellant further submits that the entire demand is barred by limitation as they have not suppressed any information from the Department and hence, extended perio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Service Tax demand of Rs.19,310/- on other charges , the appellant submits that there is no categorical finding as to under which category Service Tax has been demanded in this regard and hence the demand on this count is not sustainable. 4.4. Regarding the invocation of extended period of limitation, it is the contention of the appellant that they have been filing their returns regularly and the Department has taken the details from their balance sheet wherein all the details of receipts have been declared by them, in Annexure-A thereto. They submit that there is no suppression of any fact with the intention to evade payment of tax established in this case. Further, it is their submission that the issue is revenue neutral as the service ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reproduced at paragraph 2 of this Order) we observe that there is no demand under this head for the Financial Year 2011-12. Thus, there is no demand under this category for the normal period of limitation. Accordingly, we hold that the entire demand confirmed in the impugned order in respect of sales commission by invoking the extended period of limitation is not sustainable and hence we set aside the same. 8. Regarding the demand of Service Tax in respect of sales promotion expenditure, we find that the appellant has incurred various types of expenses under this head. For the sake of ready reference, the various heads under which the foreign currency expenditure was made and shown under sales promotion , in the Annexure are reproduced bel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in their financial statements. The impugned order has not demanded service tax on this amount under any particular category of service. We also observe that the Department has failed to bring any evidence on record to show that these have been incurred towards the receipt of any service, to demand Service Tax under reverse charge mechanism from the appellant. Accordingly, we hold that the demand of Service Tax under this head is not sustainable. 10. In view of the above, we hold that the demands of Service Tax confirmed in the impugned order are not sustainable and accordingly, the same are set aside. 11. Since the demands itself are not sustainable, the question of demanding interest thereon and imposing penalty does not arise. 12. In the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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