TMI Blog2016 (10) TMI 242X X X X Extracts X X X X X X X X Extracts X X X X ..... opy of invoices and the return form the EXP-1 and EXP-2. In fact, the basic of requirement of notification has not been disputed by the Revenue, therefore, substantive benefit cannot be denied on account of technical lapses has held by the Hon'ble High Court of Bombay in the case of Union of India Vs. Farheen Texturisers (2010 (7) TMI 982 - BOMBAY HIGH COURT). Further by the Hon'ble High Court of Allahabad in the case of J.S. Gupta & Sons (2015 (7) TMI 379 - ALLAHABAD HIGH COURT) the payment made to the overseas commission agent not in disputed. The appellant has filed all the shipping bills and copy of invoices issued by the overseas agent. These fact has not been disputed by the Revenue. In that circumstance, I hold that the appellant has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the manufacture of excisable goods which are sold in DTA as well as outside in India. The appellant were receiving the services of the overseas Commission Agent, and said service has been used for export of their goods. The service received by the appellant classify as a Business Auxiliary Service under Section 65 (105)(zzb) of the Finance Act, 1994. The appellant was required to pay service tax under reverse charge mechanism but the appellant sought exemption for payment of service tax on commission paid to the overseas commission agent in terms of Notification 18/2009-ST ibid. However, the same was denied on the premise that the appellant is not completely following the procedure laid down in the Notification No. 18/2009-ST, therefor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The only requirement of notification is to submit proof of payment to overseas commission agent. The said fact has been admitted and the basic requirement of notification has been met. The shipping bills were submitted with EXP-2 returns. The overseas commission agent issue invoices through e-mail. As these invoices received by the appellant through e-mail, the same is admissible documents under the provisions of Section 36B(1) of the Central excise Act, 1944. The benefit of Notification cannot be denied. He further submits that as per the notification, the services of the Commissioner Agent located outside India should be used export of the goods and exemption is available upto the limit of 1% of the FOB of export. Both, these requirement ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the reverse charge mechanism from the appellant by denying the benefit of Notification No. 18/2009-ST on account of technically lapses and B) Whether the activity of loading/unloading by the contractor is chargeable to service tax under the category of Manpower Recruitment Agency Services or not? 9. The facts of the case are not disputed that the appellant is receiving service of overseas commission agent and paying commission to the said agent. The benefit of notification has been denied due to reason that the appellant has not produce BRC and have not filed original copy of invoices and the return form the EXP-1 and EXP-2. In fact, the basic of requirement of notification has not been disputed by the Revenue, therefore, substanti ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
