CESTAT | To invoke longer period of limitation, evidence to show suppression or misstatement with malafide intention to be provided

Customs, Excise and Service Tax Appellate Tribunal, Allahabad (CESTAT): This appeal was filed before Archana Wadhwa, J. and Anil G. Shakkarwar, Member against the impugned order passed by the Commissioner.

Appellant was engaged in manufacturing and export of footwear and its parts falling under Chapter 64 of the Schedule to the Central Excise Tariff Act, 1985. For the purpose of exports and its procurement appellant had established four fully owned subsidiaries in foreign countries. These subsidiaries were working as overseas commission agents and were procuring export orders for the appellant. Inasmuch as the appellant is availing the said commission agent services from the companies located outside India, they were liable to pay Service Tax in respect of the commission paid to them, on reverse charge basis, in terms of Clause (iv) of Rule 2(1)(d) of Service Tax Rules, 1994. But such services come under exceptions. Such exemption should not be available on the export of the goods if the export is made by an Indian partner in a company with equity participation in an overseas joint venture or wholly owned subsidiary. The Commissioner concluded that appellants were not entitled to avail the benefit of the said Notification inasmuch as they have paid commission on export of goods procured through the wholly-owned subsidiaries.

Tribunal was of the view that the plain and simple meaning of the exception was that the exports were required to be made by an Indian partner to a company with equity participation in an overseas joint venture. It was admitted that the appellant had not exported the goods to its own wholly owned subsidiaries or overseas joint ventures. Tribunal thus favoured the appellant’s contention that the demand was barred by limitation. Therefore, the impugned order was set aside. [Super House Ltd. v. CCE, 2019 SCC OnLine CESTAT 6, Order dated 18-02-2019]

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