TMI Blog2023 (6) TMI 1246X X X X Extracts X X X X X X X X Extracts X X X X ..... specifically averred before the adjudicating as well as the first appellate authority that they acted upon a legal opinion dated 20 March 2008 wherein they were advised about the non-taxability of the said services, which aspect has neither been dealt with nor controverted by the revenue. Therefore, the plea of bonafide belief appears to be available to the Appellant in light of the decision of this Tribunal in Delhi International Airport case [ 2019 (2) TMI 869 - CESTAT NEW DELHI] . Moreover, it is also not in dispute that both these services (i.e., business auxiliary services and technical inspection certification services) were used for export and therefore, exempted vide Notification No. 41/2007- ST dated 6 October 2007 albeit by way ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arch 2018 upholding the Order of the adjudicating authority confirming the demand of Service Tax of Rs. 48,32,442/- along with interest and penalty. 2. Briefly stated the facts of the case are that the Appellant is engaged, inter alia, in the business of export of iron ore fines during the period October 2007 to March 2012 (the relevant period ). The Appellant had availed the services of foreign brokers/commission agents for procuring export orders in respect of iron ore fines as also the services of testing agencies such as, Mitra S K, Hongkong, SGS and TCRC at the discharge Port for demonstrating the quality parameters of the exported consignments. However, no service tax was discharged on the said two services. Pursuant to an investi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... charge basis in view of a legal opinion obtained by them in March 2008. In any event, both the services were specifically exempted during the relevant period having been used for export vide parent Notification No. 41/2007-ST dated 6 October 2007. Although, the exemption was refund based, the situation was entirely revenue neutral and under these circumstances, no intent to evade could be attributed on the part of the Appellant so as to justify invocation of extended period. Reference in this regard, is invited to the following decisions: (i) Wanbury Limited reported in 2019 (21) GSTL 154. (ii) Hyundai Motor India Private Limited Vs. Commissioner of CEX ST, LTU, Chennai reported in [2019 (29) GSTL 452 (Tri.- Chennai) 2020 (32 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e case of Uniworth Textiles Ltd. reported in 2013 (288) ELT 161. In the instant case, the Appellant had specifically averred before the adjudicating as well as the first appellate authority that they acted upon a legal opinion dated 20 March 2008 wherein they were advised about the non-taxability of the said services, which aspect has neither been dealt with nor controverted by the revenue. Therefore, the plea of bonafide belief appears to be available to the Appellant in light of the decision of this Tribunal in Delhi International Airport case (supra) set out below. 19 .. (d) Again as far as non-taxability of Advance Development Cost is concerned, appellant had acted on legal opinion given by PWC which had clearly opine ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ions of the appellant are that ..in relation to business auxiliary services, it is his contention that the services were engaged in relation to export of goods and, therefore, entitled to the refund in terms of Notification No. 41/2007-S.T., dated 6th October, 2007 and that the decision of the Tribunal in Genom Biotech Pvt. Ltd. v. Commissioner of Central Excise Customs, Nashik [2016-TIOL-529-CESTAT-MUM = 2016 (42) S.T.R. 918 (Tri.-Mumbai)] has held .. Services that are undeniably rendered by a foreign service provider in relation to the goods sold abroad cannot be presumed to be covered by the legislative intent to tax. To tax a service using the legal fiction of import and then reimburse that tax because the servi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd beyond the normal period cannot sustain and deserves to be set aside. Even on merits, we find that technical inspection and certification services were rendered at the discharge Port outside India and therefore could not be said to have been imported under Rule 3(ii) of the Taxation of Services (provided from outside India and received in India) Rules, 2006 being covered by Section 65 (105) (zzi) of the Finance Act, 1994 and there was no scope to invoke Rule 3(iii) of the said Rules. 9. In view of our discussions above, the entire demand with respect to Foreign Commission Agent for the period October 2007 to March 2011 is hit by limitation and the demand under Technical Inspection and Certification for the period October 2007 to March ..... X X X X Extracts X X X X X X X X Extracts X X X X
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