TMI Blog2019 (3) TMI 190X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been paid on this commission; this amount is paid before the issue of notification no. 18/2009; no value was declared in the 2nd half ST-3 Return and service tax was paid after availing the benefit of the notification 18/2009. The Learned Counsel submitted that the lapses the show cause notice highlighted on their part in respect of filing of EXP-1 was only procedural; as clarified by CBEC lack 334/13/2009 dated 06.07.2009 the requirement of filing EXP-1 is only for the purpose of enabling the department to know the persons claiming such exemption; the delay in filing this EXP-1 cannot be so fatal to deny the exemption benefit to the appellant and therefore is not a substantive requirement. They relied upon Supreme Court decision in the case of Shambhaji Vs. Gangabai 2009(240) ELT 161(SC). 3.2 They have got registered themselves with the Pharmaceutical Export Promotion Counsel from 20.06.2005 itself therefore the allegation that they have registered w.e.f. 12.04.2010 is contrary to the facts. The entire exercise is revenue neutral as the appellants were entitled to avail Cenvat credit has inputs services or could have claimed refund therefore no intent to evade payment of duty c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or any other *Conditions (1) (2) (3) (4) (1)The exporter shall declare the amount of commission paid or payable to the Commission Agent document by the exporter in India, to act on behalf of the exporter, to cause sale of goods exported by him, in the shipping bill or bill of export, as the case may be. (2)The exemption shall be limited to one percent of the free on board value of export goods for which the said service has been used. (3)The exemption shall not be available on the export of canalized item, project export, or export financed under lines of credit extended by Government of India or EXIM Bank, or export made by Indian partner in a company with equity participation in an overseas joint venture or wholly owned subsidiary. (4)The exporter shall submit with the half yearly return after certification of the same as specified in clause (g) of the proviso-(i) the original documents showing actual payment of commission agent; and (ii) a copy of the agreement or contract entered into between the commission agent located outside India and the exporter in relation to sale of export goods, outside India: Provided that- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... id within the period specified under Rule 6 of the Service Tax Rules, 1994; 5.2 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; they 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. 6. We find tha ..... X X X X Extracts X X X X X X X X Extracts X X X X
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