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2016 (11) TMI 522 - AT - Service TaxDemand during the period 09.07.2004 to 31.12.2008 - Foreign Agent Commission - reverse charge mechanism - Held that: - till 17.04.2006, no demand of service tax on reverse charge basis can be raised against the assessee in terms of law declared by the Hon'ble Bombay High Court. For the subsequent period, we have seen that the Board circular holding that services provided outside India are not taxable was withdrawn only on 10.05.2007. Otherwise also, we note that the fact that the service tax of reverse charge was recently introduced and its scope was not clear and entertained various doubts, requiring issuance of various clarifications by the Board. In the facts and circumstances of the case that the services were provided outside India and tax liability fell on the appellant on reverse charge basis, a bona fide belief entertained by the appellant was justified. Further, the appellant has been reflecting the payment of commission in their balance sheet in which case, it can be held that there was no suppression or mis-statement on the part of the assessee so as to avoid the service tax payment with a mala fide intention. Reliance placed on the decision of the case Kirloskar Oil Engines Ltd. Vs. CCE, Nasik [2004 (8) TMI 259 - CESTAT, MUMBAI] where it was held that balance sheet being a publicly available document, suppression of such information cannot be alleged and therefore, extended period was not invocable, interest not demandable and penalty not imposable under Sections 11A, 11AB and 11AC of Central Excise Act, 1994. The longer period of limitation is not available to the Revenue and accordingly demand beyond the period of limitation is set aside with confirmation of demand falling within the limitation period. Accordingly, we remand the matter to the original adjudicating authority for fresh decision. Such quantification should be done by the original adjudicating authority. As we have already held that there is no suppression or mala fide intention on the part of the appellant, the penalty imposed upon them is set aside in toto - appeal disposed off.
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