Home Case Index All Cases Service Tax Service Tax + AT Service Tax - 2019 (8) TMI AT This
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2019 (8) TMI 210 - CESTAT ALLAHABADAvailment of exemption Notification against payment of R&D Cess - Applicability of N/N.18/2002-ST as amended vide N/N. 46/2011 - Receipt of transfer of technology services from abroad - reverse charge mechanism - whether the availment of exemption by the appellant in terms of the Notification No.46/2011-ST dated 19/09/2011 is appropriate or not? - time limitation - HELD THAT:- It is a well settled position of the law that a person who claims the exemption has to prove that he satisfies all the conditions of the Notification so as to be eligible to the benefit of the same. References can be made to the Hon’ble Supreme Court Constitutional Bench decision in the case of CCE VERSUS M/S HARI CHAND SHRI GOPAL [2010 (11) TMI 13 - SUPREME COURT], MYSORE METAL INDUSTRIES VERSUS COLLECTOR OF CUSTOMS, BOMBAY [1988 (5) TMI 42 - SC ORDER], MOTIRAM TOLARAM VERSUS UNION OF INDIA [1999 (8) TMI 68 - SUPREME COURT], COLLECTOR OF CUSTOMS VERSUS PRESTO INDUSTRIES [2001 (2) TMI 133 - SUPREME COURT] and M/S HOTEL LEELA VENTURE LTD. VERSUS COMMR. OF CUSTOMS (GEN) MUMBAI [2009 (1) TMI 9 - SUPREME COURT] - It stands held in all the above decisions that onus to prove and show the satisfaction of the conditions of the Notification is on the person who claims the benefit of the same and every exemption Notification has to be read in strict sense. In the present case, the appellants have admittedly not fulfilled both the conditions of the Notification as regards payment of R & D Cess before payment of service tax and have not maintained the records so as to establish the linkage between the invoices of the R & D challans, as per the requirement of the Notifications - As such, we agree with the Adjudicating Authority that the appellant was not entitled to the benefit of the Notification. Time Limitation - HELD THAT:- This is not a case of any bona fide interpretation inasmuch as the wordings of the Notifications are very clear and required the recipient to pay R & D Cess before payment of service tax so as to avail exemption. The appellants have not given any justifiable reasons for not paying R & D Cess in time and for availing exemption without such payment of R & D Cess - extended period rightly invoked. Penalty - HELD THAT:- The appellants have availed exemption without fulfilling condition of the Notification and without discharging R & D Cess liability have admittedly contravened the provisions of the Notification, thus making them liable to penalty - penalty upheld. Appeal dismissed - decided against appellant.
|