TMI Blog2024 (2) TMI 18X X X X Extracts X X X X X X X X Extracts X X X X ..... ns to the Commissioner(Appeals) who has rejected the same by holding that the appellant had failed to file invoices along with the returns - once the EXP-2 was filed, the responsibility lies with the Department to examine/ scrutinise the returns in a timely manner, and point out any shortfall/discrepancies to the exporter/appellant. The Department never raised any the objection regarding any irregularity or highlight that invoices were not filed. Further, the Department has not brought any evidence on record to show that the appellant had suppressed any material fact in order to evade the payment of service tax. This was not done and thereafter to allege suppression with an intent to evade payment of tax to justify the demand cannot be upheld. The demand is barred by limitation. Accordingly, the impugned order is set aside - Appeal allowed. - HON BLE MS. HEMAMBIKA R. PRIYA , MEMBER ( TECHNICAL ) Shri Ravi Gupta, Advocate for the Appellant Shri Arun Sheoran, Authorized Representative for the Respondent ORDER Hemambika R. Priya Being aggrieved by the order-in-appeal No. 89(RLM)ST/JPR/2023 dated 21.03.2023 passed by the Commissioner (Appeals), Cent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Vs. CCE, Raipur [2013 (288) ELT 161 (SC)], it was held that mere non-payment of duties is not equivalent to collusion or willful mis-statement or suppression of facts, otherwise there would be no situation for which ordinary limitation period would apply; (iii) Commissioner of C. Ex., Ludhiana Vs. Instant Credit [2010 (17) STR 397 (Tri.-Del.); (iv) Vijaya Advertisers Vs. Commissioner of Customs and C.Ex., Tirupati [2007 (5) STR 345 (Tri.- - Bang.)] (v) American Airlines Vs. CST (CESTAT-Del.) [2016 (45) STR 226]; (vi) Jetlite (India) Ltd. Vs. CCE (CESTAT-Del.) [2011 (30) STT 324]. 4. The learned counsel contended that the appellant had filed all EXP-2 with the supporting documents and ST-3 returns for the impugned period and all the details which are made subject of the show cause notice were available with the department at the relevant time. Consequently, the charge of willful suppression was unjust. The adjudicating authority could have confirmed from his office records that all the invoices had been duly submitted along with EXP-2 by the appellant and service tax returns were also submitted within the prescribed time period. Therefore, whe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... instant case the appellant appeared to have contravened the provisions of Section 67, 68 and 70 of the Act read with Rule 6, 7 and Rule 2(I)(d)(i) of the Service Tax rules, 1994 and was liable to pay service tax. 6. I have heard the arguments of the learned counsel. In order to appreciate the submissions, we need to look at the relevant notification. Notification 31/2012 dated 20.06.2012 is reproduced hereinafter: Government of India Ministry of Finance (Department of Revenue) Notification No. 31/2012 - Service Tax New Delhi, the 20th June, 2012 G.S.R . (E). -In exercise of the powers conferred by subsection (1) of section 93 of the Finance Act, 1994 (32 of 1994) (hereinafter referred to as the said Act) and in supersession of the notification of the Government of India in the Ministry of Finance (Department of Revenue), No. 18/2009-Service Tax, dated the 7th July, 2009, published in the Gazette of India, Extraordinary, Part II, Section 3, Sub-section (i), vide number G.S.R.490 (E), dated the 7th July, 2009, except as respects things done or omitted to be done before such supersession, the Central Government, being satisfied that it is necessary i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he service provider to the exporter, on which the exporter intends to avail exemption, shall be issued in the name of the exporter, showing that the exporter is liable to pay the service tax in terms of item (v) of clause (a) ; (c) the exporter availing the exemption shall file the return in Form EXP2, every six months of the financial year, within fifteen days of the completion of the said six months ; (d) the exporter shall submit with the half yearly return, after certification, the documents in original specified in clause (b) and the certified copies of the documents specified in column (4) of the said Table; (e) the documents enclosed with the return shall contain a certification from the exporter or the authorised person, to the effect that taxable service to which the document pertains, has been received and used for export of goods by mentioning the specific shipping bill number on the said document. (f) where the exporter is a proprietorship concern or partnership firm, the documents enclosed with the return shall be certified by the exporter himself and where the exporter is a limited company, the documents enclosed with the return shall be certif ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Tata Iron Steel Co. Ltd. v. Union of India Ors. [1988 (35) E.L.T. 605 (S.C.)], this Court held that when the classification list continued to have been approved regularly by the department, it could not be said that the manufacturer was guilty of suppression of facts . As noted herein earlier, we have also concluded that the classification lists supplied by the appellant were duly approved from time to time regularly by the Excise authorities and only in the year 1995, the department found that there was suppression of facts in the matter of post-forming manufacturing process of the products in question. Furthermore, in view of our discussion made herein earlier, that the department has had the opportunities to inspect the products of the appellant from time to time and, in fact, had inspected the products of the appellant. Classification lists supplied by the appellant were duly approved and in view of the admitted fact that the flowchart of manufacturing process submitted to the Superintendent of Central Excise on 17-5-1990 clearly mentioned the fact of post-forming process on the rubber, the finding on suppression of facts of the CEGAT cannot be approved by us. This C ..... X X X X Extracts X X X X X X X X Extracts X X X X
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