M/s. Globe India Ltd. Versus Commissioner of CGST & CX, Kolkata
Service Tax
2018 (11) TMI 1212 – CESTAT KOLKATA – TMI
CESTAT KOLKATA – AT
Dated:- 30-7-2018
ST/75461/18 – FO/76484/2018
Service Tax
SHRI P.K.CHOUDHARY, MEMBER (JUDICIAL)
Shri S. K. Goyal, CA for the Appellant (s)
Shri S. S. Chattopadhyay Suptd. (A. R.) for the Revenue
ORDER
The present appeal is filed by the appellant against the Order-in-Appeal No. 202/ST-I/KOL/2017 dated 20.09.2017 passed by the Commissioner of CGST & CX, (Appeals-I), Kolkata.
2. The facts of the case in brief are that the appellant is an exporter of silk fabrics. They have procured the services of commission agents located outside India to cause sale of goods exported. They are paying commission in foreign currency to the overseas agency for selling of goods in the overseas market. The sales commission paid by the appellant is leviable to Sevice Tax under RCM under the category of “Import of Service”. However, various Notificat
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ence, the present appeal before the Tribunal.
4. The Ld. Consultant appearing on behalf of the appellant Company submits that though they do enter into written agreements with the Overseas Agency providing services to whom the commission was paid, but for the instant case, which was a verbal agreement and no document was executed for the same. The period of dispute is October 2013 to March 2014.
The Ld. Consultant further contended that Form EXP-3, required for availing the exemption, was required to be filed only once at the time of availing such commission for the first time, and there was no requirement to file it subsequently. Form EXP-4, was duly submitted on 21/04/2014 (i.e. beyond the due date of 14/04/2014). The delay of six days occurred since the person who was in-charge of compiling the documents, for making the statutory compliance, was not well. The Ld. Consultant also submits that since the Commission Agent from whom they availed the services, is located outside India,
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ts had filed Form EXP-3 before the Service Tax Authorities on 10/10/2012. I also find that the issue is no more res-integra in view of the decisions of the Tribunal in the case of PRAZ INDUSTRIES LTD. Vs. COMMISSIONER OF CENTRAL EXCISE, PUNE-III : 2017 (3) G.S.T.L. 341 (Tri.-Mumbai) and SUNCITY ART EXPORTERS Vs. COMMISSIONER OF C. EXC. & S.T., JAIPUR-II : 2016 (45) S.T.R. 411 (Tri. -Del.). In the case of Praj Industries Ltd. Vs. Commissioner of Central Excise, Pune-III (supra), the Tribunal has held as under:-
“3. Reading of the notification shows that the above conditions are regulatory in nature and not mandatory to avail the exemption. If the procedure prescribed is not fulfilled there would be no consequence of denial of the benefit of the notification. It is stated that taxing the goods denying the notification benefit shall make the export goods non-competitive in the global trade, which is contrary to basic principle of WTO. Accordingly, looking to the gravity of the conditions
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d it was held that Cenvat Credit is not to be denied on the basis of computer generated invoices. Learned Advocate submits that the said invoices contained all the details like container number of shipping bill number, bill of loading number, etc., and fully establishes the availment of the service used in the export of the goods.
4. In view of the above, we find that the denial of refund of service tax on the said ground is not in consonance with the percent decisions referred (supra) as also in terms of the Board Circular No. 112/6/2009-S.T., dated 12-03-2009. We accordingly direct the Assistant Commissioner to verify the appellant's refund claim afresh.”
8. In view of the above decisions, I find that the case of appellant is that of a procedural lapse, which is condonable and denial of substantive benefit on such procedural oversight, is unjustified. Accordingly, the appeal filed by the appellant is allowed.
(Operative part of the order was pronounced in the open court.)
Case
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