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M/s Malaysia Airlines Versus Commissioner of Service Tax, Chennai

2016 (3) TMI 232 - CESTAT CHENNAI

Demand of Service tax - Transport of Cargo by air under Section 65(105) (zzn) of the Finance Act, 1994 for the period from 15.3.2005 to 23.6.2005 - Held that: there was an exemption of service tax in transport of cargo by air vide Notification No. 28/2004-ST dated 17.09.2004. which was withdrawn vide Notification No. 10/2005-ST dated 03.03.2005 w.e.f. 15.03.2005. Again another notification was issued for exemption vide Notification No.29/2005-ST dated 15.07.2005. Since the appellant's service do .....

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exemption of service tax on the said service from 16.06.2005 to 23.06.2005 and penalties are not to be imposed under Section 76 & 78. - Decided partly in favour of appellant - ST/133/2007 - Final Order No. 41452/2015 - Dated:- 28-10-2015 - R. Periasami, Member (T) And P. K. Choudhary, Member (J) For the Appellant : Mr. P.K. Sahu Advocate and Mr. Rajiv Pal Puri, Consultant For the Respondent : Mr. M. Rammohan Rao, JC (AR) ORDER Per P K Choudhary This appeal has been filed against the order of the .....

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l 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 Subsequently, on 15.3.2005, the exemption was withdrawn and Export of Service Rules, 2005 was notified wherein service of transport of cargo by air was considered as export of services as partly per .....

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port of cargo by air. 3. He submits that common policy was to allow export of services without any tax. He further submits that the second Notification No. 29/2005 (supra) which was issued again exempting service tax which was originally exempted by Notification No. 28/2004 from 17.9.2004 to 15.3.2005 to be considered as clarificatory in nature. Therefore, service tax is not leviable for the intervening period between 15.3.2005 and 23.6.2005. He relied on para 3 of the Board's Circular No. 5 .....

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(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 cas .....

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e amount received and paid and the facts were known to the Department. On limitation, he relied on the decision of the Hon'ble Supreme Court in the case of Continental Foundation Jt. Venture Vs. CCE, Chandigarh - 2007 (216) ELT 177 (SC). 6. He also submits that the service tax demand is confirmed on the value furnished by them which is not the correct value. He referred to the letter dated 3.5.2007 at pages 70 to 72 of the appeal folder. The letter was addressed to Commissioner of Service Ta .....

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d. 7. On the other hand, learned AR for Revenue reiterated the findings of the adjudicating authority particularly he drew our attention to paragraph 13.4 of the adjudication order where the adjudicating authority has dealt the issue in detail and 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 .....

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re was an exemption of service tax in transport of cargo by air vide Notification No. 28/2004-ST dated 17.09.2004. The said exemption was withdrawn vide Notification No. 10/2005-ST dated 03.03.2005 w.e.f. 15.03.2005. Again another notification was issued for exemptionvide Notification No.29/2005-ST dated 15.07.2005. Since the appellant's service do not quality under the Export of Service Rules for the period 15.03.2005 to 23.06.2005 and the payment was received in Indian currency.We also fin .....

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M/s. Srilankan Airlines Vs. CST, Chennai - 2013 (29) S.T.R. 365 (Tri. - Chennai), upheld the demand of service tax for the period where there was no exemption and waived the penalties. The relevant portion of the said order is reproduced as under:- 11. After considering the arguments on both sides we find that the appellants were aware that there is an issue that the Export of Services Rules was not helping his case from 15-6-2005. That is why he started paying tax from 24-6-2005. Now the only a .....

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