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Finance Minister in para 149 of the budget speech while introducing the entry for tax on Goods Transport Agency in the budget of 2004. It appears that there was clear intention not to levy service tax on individual truck owners except in cases where the cargo for such trucks are booked by Goods Transport Agency which is in the business of booking cargo and issuing the consignment note in the normal course of their business.
The appellant Rajasthan Cricket Association organises cricket matches in various places in Rajasthan and they allow different parties to put up advertisement in the stadium in which matches are being organised, and they have been collecting charges for selling such advertisement space. Revenue made out a case that Appellant should have paid service tax under the taxable entry in Section 65(l05)(zzzm) which covers sale of space for advertising.
No doubt the Notification requires that details of export invoices should be mentioned in lorry receipts and shipping bills, however, there is no bar to provide these details separately in case the original lorry receipts/shipping bills did not contain these details. The Revenue is free to insist on verification in such cases and refund can be granted only after verification. The question whether such condition is substantive or otherwise is not required to be examined. Matter remanded to adjudicating authority for verification in aforementioned terms.
Thus according to judgment of Hon’ble High Court of Punjab & Haryana in Mohan Bottling Co (P.) Ltd.’s case (supra), it can safely be said that sending the order at correct address by registered post is a sufficient compliance of section 37-C of Central Excise Act, 1944 and it is for the assessee to rebut the presumption of service by cogent evidence that in fact order was never served upon him. The appellant in the present appeal in hand failed to discharge its burden of proof, we are able to notice this is a case of service on any authorized person, nor the case of closure of factory nor the case of rebuttal of presumption of by appellant.
In this case the appellant have tried to ensure that the law is followed and is implemented properly. Therefore, as soon as the dispute arose in 2005-06, they made the payment under protest. Further, I also found from the Chartered Accountant’s certificate that the certificate clearly says that the incidence of the said service tax had not been passed on by them to any other person and it was not recovered from the clients.
We find that the impugned exemption notification allowing refund of service tax paid in respect of exports has been issued with the sole objective of removing the burden of service tax from the export goods. It has been rightly contended by the ld. advocate that it is the avowed policy of the Government not to export domestic tax along with export goods and to make such goods competitive in the foreign market.
So far as the penalties are concerned, we do appreciate that the learned Commissioner has considered waiver but the reasoning for the waiver is not acceptable to us. We make it clear that when there is a levy of tax, liveability of penalty depends on the facts and circumstances of each case. The reimbursement issue has travelled with lot of controversies till conclusions by Larger Bench. Learned Counsel says even the dispute has gone to Apex Court. Appreciating the difficulties faced by the assessee at the infancy stage which is reasonable cause, there shall be no levy of penalty under sections 76 and 78 of the Finance Act, 1994, in the present case. But we confirm penalty levied under section 77 of the said Act, since liability for payment has ensued with obligation for registration arose.
After hearing the learned SDR, we find that in page Nos. 238 to 245 the appellant had produced various certificates before the adjudicating authority from the original contractor. These certificates indicate that the original contractor has discharged the service tax liability on the part of the work executed by appellant. If that be so, in our view the appellant need not be burdened with service tax liability.
Perusal of the show-cause notice indicates that the appellant had realised service tax from his client but did not deposit. The mitigating factors of financial condition and illness could have been received consideration, had the appellant not realised service from its clients. Since service tax was realised and that was with the appellant, keeping such public money the appellant does not require any consideration for total waiver of penalty. Only looking to the cooperative attitude of the appellant, it may not be proper to penalise under section 76 and 78 of the Finance Act, 1994. Simultaneously, to remove hardship, it would be proper to direct the appellant to deposit 25% of the demand towards penalty under section 78 of the Finance Act 1994 within 30 days of receipt of this order. If there is no deposit, this order shall stand vacated and Revenue shall be free to realise its entire dues in accordance with law.
Counsel submits that service of the courier was used for dispatch of the samples to abroad. When courier service is connected with export and relevancy thereof was not doubted, the appellant cannot be denied relief of credit relating to tax paid for appropriate consequence under different law. Ld. Commissioner (Appeals) without looking into strength of evidence filed, recorded that the appellant failed to correlate the invoices by the courier services with the export of goods.
