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TMI Blog2025 (2) TMI 1112X X X X Extracts X X X X X X X X Extracts X X X X ..... ion Commissioning & Installation Services" as defined under section 65(39a) of Finance Act. 1994, and hence appellant in respect of its Annual Maintenance Contracts (AMCs) for elevators to other customers paid service tax for such services provided directly by appellant. However, when services were provided on behalf of M/s. Maspero, no service tax is paid as appellants because as per them they were under bonafide belief that since appellant is providing services to Maspero-Italy based company - and receiving consideration from Maspero in foreign convertible currency, the same is treated as export of services and hence the same is not taxable and accordingly, value of such services were not included in while filing ST-3 returns during the relevant period. A Show cause notice (SCN) dated 09.12.2016 was issued by the Assistant commissioner of service tax division- I, Vadodara- I Commissionerate by which it a demand of service tax amounting to Rs. 49,87,484/- was raised under proviso 73(1) of Act. It was contended in the said SCN, that appellant has claimed the consideration received from M/s. Maspero as export remittance. However, the service does not qualify as "Export of Service" u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ated that it is contesting the above appeals on limitation only. It was submitted that SCN dated 9-12-2016 demands service tax for the period 2011-12 to 2015-2016, to the extent, it seeks to demand tax beyond normal period of (18 months as it existed then) the same is barred by limitation provided under proviso to section 73(1) of the Finance Act. It was submitted that the larger period of limitation under Section 73 (1) cannot apply as there was no fraud, collusion, willful mis-statement or suppression of facts or contravention with intent to evade duty on the part of the Appellant. It was submitted that appellant is a proprietor and has been paying service tax on installation and maintenance services in respect of industrial elevators, however, such services were provided to Maspero a foreign based seller of elevator and further consideration was received in convertible foreign currency, it was under bonafide belief that the same was not taxable as the same is treated as export of services. This fact is stated in statement dated 6-9-2016 of appellant recorded during investigation. It was further an undisputed fact that appellant maintained all records in respect of his activity i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent with a Italy based company i.e. M/s. Maspero Elevators (Italy) as authorized contractor for providing service of erection, commissioning and maintenance of elevators and elevators shaft supply by M/s. Maspero Elevators to Indian customer. The appellant had received commission in foreign convertible currency from M/s. Maspero for providing service to their Indian customers but did not discharge service tax liability on full taxable amount by showing less taxable value. 2. The issue to be decided is that whether the service provided by the assessee is Erection, Commissioning or Installation service or Commission Agent Service and whether extended period is applicable. 3. The appellant had filed ST-3 returns which did not include the value of services provided to Indian Buyers of M/s. Maspero as part of agreement with the said foreign firm who incidentally had not provided any direct service in India. 4. The appellant's contention that the services are to be treated as export of services during the relevant period, though the services provided by the appellant may be apparently covered under erstwhile Rule 3(1)(ii) of the Export of Services Rules, 2005, but had failed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... installation of elevators. If that be so, malafide cannot be attributable upon an assessee who is an individual on account of lack of clarity in legal position prevailed during the disputed period in the field. In view of above, it is prayed that demand beyond 18 months from the date of SCN covering the period 2011-12 to 2014-15 is barred by limitation and is liable to be set aside. Since demand is barred by limitation, penalty under section 78 would also not apply and is liable to be set aside as well" 7. Considered. This Court finds that the arguments of the department on limitation that extended period has been invoked as suppression of facts can easily be deduced as no Service Tax returns were filed in relation to the intermediate services undertaken by the appellant nor any taxable value was indicated but it was only through the audit that the misconduct of the party came to be known to the department. Department has emphasized that the Rules, of POPR, 2012 and even the older ones of Export of services Rules, 2005 through the statutory provisions were quite clear in this regard. And the contents of the agreement which they had could have been known to the party only till de ..... X X X X Extracts X X X X X X X X Extracts X X X X
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