TMI Blog2019 (8) TMI 321X X X X Extracts X X X X X X X X Extracts X X X X ..... lso interest and thereafter claimed refund. This refund was granted to appellant by orders dated 31 January, 2012 and 13 February, 2012 and the amount was also paid to the appellant. These refund orders, as pointed out by the learned counsel for the appellant have attained finality. The refunds were granted since taxable services were provided by the appellant to carry out authorized operation in SEZ. Extended period of limitation - HELD THAT:- The appellant had submitted a detailed reply to the show cause notice pointing out that the appellant had for bona fide reasons not deposited the service tax and in any case when the Department brought to the notice of the appellant the Notification dated 3 March, 2009, the appellant deposited the entire service tax as also interest. The appellant cannot be said to have had any intention to evade payment of service tax, more particularly when the Notification dated 3 March, 2009 enabled the appellant to claim refund of any service tax paid by it in its entirety. It is plausible that the appellant may not have paid service tax because of ignorance of the Notification dated 3 March, 2009. The subsequent Notification dated 1 March, 2011, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hereinafter referred to as 2005 Act). The period of dispute is from 3 March, 2009 to 31 March 2011. However, as the Department had raised this issue, the appellant states that it deposited Service Tax to the extent of ₹ 10,26,947/- and interest to the extent of ₹ 1,28,857/-. This fact was informed the Department by letters dated 31 March, 2011. 3. The appellant thereafter claimed refund of the aforesaid amount in terms of the Notification No.9/2009 dated 3 March, 2009 and Notification No. 17/2011 dated 1 March, 2011. These Notifications provide for exemption from payment of service tax on specified services received from the authorized operation in SEZ by way of refund. The refund claims were also sanctioned by Orders dated 31 January, 2012 and 13 February, 2012 and full and final settlement of the claims were made through two cheques dated 31 January, 2012 and 13 February, 2012. 4. Subsequently a demand-cum-show cause notice dated 18 January, 2013 was issued to M/s Pheonix Lamps Ltd.,A-1, Phase-II, Noida (U.P.), M/s Pheonix Lamps Ltd., 59-A, NSEZ, Phase-II, Noida (U.P.) and M/s Pheonix Lamps Ltd., 59-D, NSEZ, Phase-II, Noida (U.P.). T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 27 February, 2013 to the aforesaid show cause notice dated 18 January, 2013 and denied the allegations contained in the show cause notice. It was stated that though the appellant had deposited the entire amount of service tax as also interest and informed the Department but still it was served with a show cause notice which would be contrary to the provisions of Section 73(3) of the Act. The appellant also pointed out that there was no suppression of facts with an intention to evade payment of service tax since prior to 3 March, 2009, when Notification No.9/2009 was issued, the appellant was entitled to full exemption from payment of service tax under Section 26 of the 2005 Act. It was also pointed out that it was only by way of the aforesaid Notification dated 3 March, 2009 that exemption was provided from payment of service tax by way of refund and the appellant acquired knowledge of this Notification only when the Department corresponded. It also pointed out that the selling commission‟ amount in foreign exchange was paid through banking channel and was duly reflected in the books of account and in the balance sheet and it was not even the case of the Department that this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... evade payment of service tax. 8. There separate appeals were filed by the appellant to assail the order dated 14 February, 2014. As stated above all the three appeals were dismissed by the Commissioner (Appeals) by three separate identical orders, each dated 24 July, 2014. The pleas of the appellant regarding Section 73(3) of the Act and that there was no suppression of facts with intention to evade service tax, were rejected. 9. In regard to the suppression of facts, the Commissioner (Appeals) observed as follows:- 4.4 I agree with the arguments of the adjudicating authority. If the intentions of the appellant were honourable, they would not have taken a year to deposit the service tax due. The pleas of the appellant regarding the applicability of explanation 2 of section 73(3) of the act, cannot be accepted as I agree with view point of the adjudicating authority that the appellant had malafied intentions. It is not a case of ignorance of law, but a deliberate well thought act of evasion. Therefore the decision of the adjudicating authority on this point is just and proper. 4.5 The appella ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Notification dated 3 March, 2009 exemption from payment of Service Tax was by way of refund. Elaborating this submission learned counsel pointed out that prior to the issuance of the Notification dated 3 March, 2009, the payment of service tax was exempted under Section 26 of 2005 Act; (ii). That the Commissioner (Appeals) completely failed to appreciate the aforesaid submissions made by the appellant and thereby committed an illegality; and (iii) That even otherwise, as the appellant had deposited the entire amount of service tax with interest prior to the issuance of show cause notice, the Department could not have issued a show cause notice in view of the provisions of Section 73(3) of the Act. 11. Learned Authorized Representative of the Department, however, supported the impugned orders and submitted that they do not call for any interference in this appeal. 12. We have considered the submissions made by the learned counsel for the appellant as also the Authorized Representative for the Department. 13. The appellant is engaged in the manufacture, sale and distribution of Halogen Lamps a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion of the appellant has to be examined keeping in mind the provisions of Section 26 of the 2005 Act. This section provides exemption from payment of service tax subject to the conditions laid down in sub section (2). It is in terms of sub section (2) of Section 26 of the Act that the Notification dated 3 March, 2009 and the subsequent Notification dated 1 March, 2011 superseding the earlier Notification were issued. The amount paid by the appellant towards the Selling Commission‟ were through banks and was reflected in its books of account. It cannot, therefore, be said that this amount was paid in a clandestine manner. The moment the Department brought to the notice of the appellant, the Notification dated 3 March, 2009 under which it was required to pay service tax under a reverse charge mechanism but could claim refund subsequently, the appellant deposited the entire amount as also the interest. It, however, claimed refund as provided for in the said notification and refunds were ultimately sanctioned and paid. The Commissioner (Appeals) has not accepted this submission of the appellant merely for the reason that ignorance of law is not an excuse, since the Notification ..... X X X X Extracts X X X X X X X X Extracts X X X X
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