Order Date – 09 January 2023

Parties: M/s. Avery India Ltd Vs Commissioner of Central Excise, Customs & Service Tax, Patna

Facts – 

• The Appellant, M/s. Avery India Ltd, were engaged in providing “Maintenance and Repair Services‟ and “Installation and Commissioning services‟. On an investigation it was found that they were not discharging Service Tax for the services rendered to their Nepal clients.
• Invoking the extended period provisions, the Show Cause Notice was issued on 02.09.2009 for the period April 2004 to March 2009. The Service Tax demand along with interest and penalty was confirmed.

Issue –

• Whether the service rendered outside India would completely go out of the purview of the Service Tax?

Order –

• The Tribunal observed that the service provided by the appellant falling under Section 65 (105) (zzg), is specifically mentioned at Export of Services Rules, 2005, Rule 3 (1) (ii). Under this Rule, even if the service is partly provided abroad, the same is to be treated as export of service. In the present case, admittedly, the “repairs and maintenance service‟ has been carried out for their Nepal based clients at Nepal only. Therefore, this condition is getting fulfilled.
• On going through the nine invoices enclosed in the Appeal book, found that the amount is given as “Rs.”, without specifying as to whether it is for “Nepalese Rupees” or for “ Indian Rupees”. Therefore, in the present case, the appellant has not fulfilled the Condition of receiving the proceeds in “Convertible Foreign Exchange‟, as has rightly been held by the Adjudicating Authority with proper reasoning at Page 6 of the Order in Original and as upheld by the Commissioner (Appeals).
• All the documentary evidence shows that they have declared all the transactions in their books of accounts, ST 3 Returns and Income Tax Returns. Hence, far from the allegation of suppression with an intent to evade, the appellants have come clean with their proper filing of ST 3 Returns and other statutory Returns. Hence, held that the confirmed demand for the extended period is legally not sustainable. Hence, set aside the confirmed demand for the extended period.
• As the issue is that of bonafide belief and interpretational difficulties, all the penalties are set aside, including in respect of the balance amount to be quantified for the normal period. The appeal is partly allowed.