9911796707
TMI Blog2016 (3) TMI 232X X X X Extracts X X X X X X X X Extracts X X X X ..... was issued for demanding service tax and the adjudicating authority confirmed the service tax of Rs. 1,09,99,306/- along with appropriate interest and also imposed penalty under Sections 76 and 78 of the Finance Act, 1994. 2. The learned counsel representing for the appellant reiterated the synopsis. He submitted various provisions of service tax on Transport of Cargo by Air which came into effect from 10.9.2004 by an exemption Notification No. 28/2004-ST dated 17.9.2004 which exempted service tax on the value of transport of cargo by air. Subsequently, on 15.3.2005, the exemption was withdrawn and Export of Service Rules, 2005 was notified wherein service of transport of cargo by air was considered as export of services as partly performe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 283 (d) CCE, Goa Vs. SESA Goa Ltd. 2014 (299) ELT 221 (e) SGS India Pvt. Ltd. Vs. Commissioner of Service Tax 2011 (24) STR 60 4. He submits that as per the decision in the case of W.P.I.L Vs. CCE (supra), the Hon'ble Supreme Court has clearly held that the latter notification did not grant any exemption for the first time, it was only clarificatory and hence retrospective in nature. He drew our attention to Rule 10 of the present provisions of Export Rules. He also relied on the Income Tax case in Commissioner of Income Tax Vs. Alom Extrusions Ltd. - [2009] 185 TAXMAN 416 (SC) that the notification is only clarificatory in nature. 5. As regards limitation, he submits that the entire demand is hit by time-bar as the entire dem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... discussed Notification No. 29/2005-ST is not retrospective. He further submits that the notification is not in a clarificatory nature. He submits that as per Export of Service Rules both provider and recipient are India, therefore it cannot be treated as export of service. He further submits that if it is considered under Export of Service Rules, there was no requirement of issue of Notification No. 29/2005. Further, he submits that the decisions cited by the learned counsel are distinguishable as the facts are entirely different as the present case the issue relates to service tax on the export of services. 8. After hearing both sides, we find that the appellant is admittedly an Airline engaged in the business of transportation of cargo. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... only argument is that during the period 15-6-2005 to 23-6-2005, the appellant was not able to collect taxes from the customers. That cannot be a reason to waive the liability or to consider that the appellant had bona fide belief that tax was not payable for the said period. In fact when the appellant came to know of the position say on 23-6-2005 as per their statement, they should have paid Service Tax for the previous 7 days also. Therefore the argument that they were under the bona fide belief is not acceptable. So we consider that the extended period of time can be invoked in this case. At the same time, considering the peculiar nature of the circumstances, we are of the view that invocation of Section 80 of the Finance Act, 1994 is ju ..... X X X X Extracts X X X X X X X X Extracts X X X X
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