TMI Blog2024 (1) TMI 526X X X X Extracts X X X X X X X X Extracts X X X X ..... arge mechanism. Even if there was any service rendered in regard to quality checking, the demand ought to have been raised against M/s.Fashion Force, who is the service provider for quality checking - If the department is of the view that Fashion Force, Tiruppur is the branch office of JPS Trading, Dubai then it would be M/s.Fashion Force, Tiruppur who is liable to pay service tax. It cannot be said that the deductions made in the invoices raised in the name of M/s.Bonprix, Germany is a payment made to Fashion Force, Tiruppur. For these reasons, the demand raised under BAS , Technical Inspection and Certification Service is without any factual or legal basis and requires to be set aside which we hereby do. The issue on merits is answered in favour of the appellant and against the Revenue. GTA Service - extended period of limitation - HELD THAT:- Even if the appellant paid tax on GTA services, the appellant would be eligible for availing cenvat credit of the tax paid. The entire situation is revenue-neutral. In such situation, the extended period cannot be invoked as decided in the case of NIRLON LTD. VERSUS COMMISSIONER OF CENTRAL EXCISE, MUMBAI [ 2015 (5) TMI 101 - SUPREME ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w, if the recipient of GTA is a registered partnership firm, then such recipient is liable to pay service tax for the said service. The appellant is therefore liable to pay service tax under GTA Service also. The appellant failed to register themselves, pay service tax and file ST-3 returns. Show cause notice dt. 19.04.2010 was issued proposing to demand the service tax under Business Auxiliary Service , Technical Inspection and Certification Service and GTA Service . After due process of law, the original authority confirmed the demand for the period 18.04.2006 to 31.03.2009 along with interest under BAS and Technical Inspection Certification services. In regard to GTA services, demand along with interest was confirmed after granting abatement for the period after 1.3.2008 only. Penalties were also imposed. Aggrieved by such order, the appellant filed appeal before the Commissioner (Appeals) who vide order impugned herein upheld the demand, interest and penalties imposed. Hence this appeal. 2. The Learned Counsel Sri M.N. Bharathi appeared and argued for the appellant. Ld. Counsel adverted to the invoice raised by the appellant on M/s.Bonprix, Germany and submitted that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t abatement as envisaged in Notification No.32/2004 dated 2.12.2004 for the reason that the condition in the notification applicable to goods transport agency has not been complied with by the appellant. The said condition requires that the appellant has to furnish declaration that the Goods Transport Agency has not availed cenvat credit on capital goods. This condition in the notification was omitted w.e.f. 1.3.2008 and therefore abatement was granted for the period after 1.3.2008. It is argued by the counsel that the appellant had used the transport services for export of goods. Services in relation to export cannot be subjected to levy of service tax. It is also submitted that even if the appellant had paid service tax, the same would be eligible as credit to the appellant and the entire exercise, in any case, is revenue-neutral. For these reasons, the invocation of extended period cannot sustain. Ld. Counsel prayed that the appeal may be allowed. 3. Ld. A.R Shri M. Selvakumar appeared and argued for the Department. The findings in the impugned order was reiterated. It is argued that M/s.JPS Trading, through its local office helps the appellant in getting the export orders an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... brought out from evidence that garments are sold by the appellant to M/s.Bonprix, Germany. M/s.JPS Trading, Dubai has played a role of middleman in making arrangements. The quality test is done by M/s.Fashion Force in India. According to the department, it is an agent of M/s.JPS Trading, Dubai. However, there is no payment made by the appellant to M/s.Fashion Force. We therefore do not understand how there would be a service rendered by M/s.Bonprix, Germany to the appellant so as to be taxable under reverse charge mechanism. Even if there was any service rendered in regard to quality checking, the demand ought to have been raised against M/s.Fashion Force, who is the service provider for quality checking. If the department is of the view that Fashion Force, Tiruppur is the branch office of JPS Trading, Dubai then it would be M/s.Fashion Force, Tiruppur who is liable to pay service tax. It cannot be said that the deductions made in the invoices raised in the name of M/s.Bonprix, Germany is a payment made to Fashion Force, Tiruppur. For these reasons, we find that the demand raised under BAS , Technical Inspection and Certification Service is without any factual or legal basis and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 3-3-2001 is concerned, the demand from February, 1996 till February 2000 would be beyond limitation and that part of the demand is hereby set aside. Once we have found that there was no mala fide intention on the part of the appellant, we set aside the penalty as well. 5. In view of the said statement made by the learned counsel on either side that the ratio laid down by the Supreme Court in Nirlon Ltd. case cited supra, is applicable to the case on hand, the substantial question of law is answered in favour of the assessee/respondent and against the Revenue/appellant. 7. In the result, the impugned order is modified to the extent of setting aside the demand, interest and penalties under Business Auxiliary Service , Technical Inspection and Certification Services . 8. The demand, interest and penalties in regard to GTA Service is set aside for the extended period. The details as to whether GTA services were used only for export is not before us. Therefore, the appellant is liable to pay the tax on GTA services for the normal period along with interest. For the same reasons of revenue neutral situation, the penalties are set aside entirely. 9. The appeal is p ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
