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2019 (3) TMI 190 - AT - Service TaxBusiness auxiliary service - appointment of commission agents in foreign countries to promote their business - benefit of N/N. 18/2009ST dated 07.07.2009 denied - Held that:- On going through the notification it is seen that the noticee have not informed the department and obtained acknowledgment from the jurisdictional Deputy/Assistant Commissioner; whereas the appellants were required to furnished all relevant documents they fail to furnish the copy of the agreement between them and the commission agents and have not furnished a copy of original documents showing actual payment of commission - appellant have not furnished copies of the bills which Challans as required under table B of the forum EXP-2; the documents whatever submitted by the appellants have not certified by the person who has been authorities by the board of directors; they have not furnished the declaration to the effect that the claim of exemption is not in respect of export of canalized items, product report are export financed underlines of credit extended by Government of India or AXIM Banks or export made by Indian partner in a company with equal participation in an overseas joint-venture are wholly owned subsidiary of the exporter had been produced by the exporter along with the claim. Thus, the appellants failed to comply with the conditions of the notification 18/2009 ST dated 07.07.2009 - It is not open for the appellant to continue to follow the conditions of the notification and claim substantial compliance and thus benefit of the notification. The intention of the Government was to extent the benefit subject to the compliance of the conditions mentioned therein in the notification. The appellant having not complied with the same would forgo the right to avail the benefit of the notification - benefit of notification rightly denied. Penalty - Held that:- Having not complied with the conditions of the notification it was not open for the appellants to claim that there was no extent to evade payment of duty - moreover, for the subsequent period they have not discharged their duty liability. They have only paid the duty liable to be paid by them for the year 2007-08 along with interest - the penalty imposed in respect of the demand of ₹ 3,67,133/- can be waived as duty and interest have been paid. However, with respect to the penalty on the service tax confirmed for ₹ 22,69,757/- held that the penalty imposed is sustainable. Appeal allowed in part.
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