Raju ORDER
Raju, Member (T)
1. This appeal has been filed by M/s. Nabros Pharma Pvt. Ltd. against confirmation of demand of service tax, interest and imposition of penalty.
2. The appellant has engaged in the manufacture of Pharmaceutical products. The appellant availed the services of an overseas agent for procuring export orders and made payments to the overseas agent under the head of commission during the period 2003-2004 to 2006-2007. The appellant had discharged service tax liability during the period 2003-2004, 2004-2005 and 2005-2006 on the said services obtained from an overseas agent. For the period from 01.04.2006 to 31.03.2007 the appellant had made the provision for service tax liability in their balance sheet and said service tax liability along with applicable interest was paid in the month of October, 2007. The demand of Service tax was raised on the appellant amounting to Rs. 22,93,231/- invoking proviso to 73 of Finance Act, 1994 invoking the extended period of limitation alleging that the appellant is liable to pay on Reverse Charge basis service tax on the marketing and legal services obtained by the appellant from services providers located abroad.
3. The Learned Counsel for the appellant pointed out that the extended period of limitation has been invoked. The show cause notice has been issued on 28.06.2010 for the period 18.04.2006 to 31.03.2007. He pointed out that the extended period of limitation has been invoked though the issue regarding the liability to pay service tax on reverse charge basis was very new at the material time and there was a lot of confusion in the field formation as well as trade. He pointed out that the issue was settled by the decision of Hon'ble High Court of Mumbai in the case of Indian National Shipowners Association - 2009 (13) STR 235 (Bom.). He pointed out that they have a bona fide belief that no service tax is payable on a reverse charge basis. He further pointed out that whatever tax was paid by them on reverse charge basis on sales Commission and legal charges was admissible to them as cenvat credit and therefore, they could not have been possibly any intention to evade service tax and therefore extended period of limitation could not have been invoked. He relied on the decision of larger bench of tribunal in the case of Jay Yhushin Limited -MANU/CE/0002/2000 : 2000 (119) ELT 718 (Tri. LB). He also relied on the decision of the Tribunal in the case of M/s. Mark Bioscience Limited in the case of vide Final Order No. A/11070/2019 dated 04.07.2019 wherein invocation of extended period of limitation was set aside by the Tribunal.
4. Learned AR relies on the impugned order. He pointed out that the Hon'ble Apex Court of Bombay in the case of Indian National Shipowners Association - MANU/SC/1079/2010 : 2010 (17) STR J57 (SC) upheld the service tax liability on reverse charge basis w.e.f. 18.04.2006. Thus, the demand w.e.f 18.04.2006 is payable by the appellant. He relied on the decision of the Tribunal in the case of Jayshree Impex vide Final Order No. A/118........