The Customs, Excise & Service Tax Appellate Tribunal New Delhi ruled that there is no need for clarification when the amount received is not chargeable to Service Tax.
Facts
Orbit Research Associates Private Limited has filed this appeal for setting aside the order dated 20.02.2017 passed by the Commissioner, Service Tax, New Delhi dismissing the three appeals filed by the appellant to assail the order passed by the Additional Commissioner of Service Tax adjudicating the two show cause notices and the Statement of Demand.
The two show cause notices and the Statement of Demand relate to the period from 01.07.2012 to 31.03.2015 and proposed to disallow the exemption claimed by the appellant from payment of service tax on „export of service‟ by treating the service rendered by the appellant as “business auxiliary service” defined under section 65(105)(zzb) of the Finance Act 1994 to an entity situated in India. The show cause notice relied upon rule 3(2) of the Export of Service Rules 2005.
Submissions
S. Radhakrishnan, counsel for the appellant, submitted that the Commissioner (Appeals) committed an illegality in confirming the demand in as much as the 2005 Export Rules relied upon in the show cause notice had been superseded by the 2012 Rules.
Rajeev Kapoor, authorized representative appearing for the department reiterated the findings recorded by the Commissioner.
Decision
The division bench of Justice Dilip Gupta President And Hemambika R. Priya Member (Technical) observed that when an assessee believes that the amount received was not chargeable to service tax, there is no requirement for seeking clarification, more particularly when the Finance Act also does not contemplate any procedure for seeking clarification from the jurisdictional service tax authority.
The bench noted that the appellant, as is seen from the impugned order, had filed ST-3 Returns for the period from July 2012 to September 2014 and had shown the whole commission earned during the relevant period.
The bench held that the extended period of limitation could not have been invoked.
The Tribunal observed that not only had the appellant rendered “export of service”, be it under the 2005 Rules or under the 2012 Rules, but the extended period of limitation also could not have been invoked in the facts and circumstances of the case.
Case title: Orbit Research Associates Private Limited v/s Commissioner of Service Tax
Citation: Service Tax Appeal No. 50838 Of 2017
