Customs, Excise and Gold Tribunal - Ahmedabad
Navyug Alloys Pvt. Ltd. vs C.C.E. on 30 November, 2006
Equivalent citations: [2007]9STJ123(CESTAT-AHMEDABAD), 2007[6]S.T.R.56, [2007]7STT263, (2007)5VST372(CESTAT-AHD)
ORDER Krishna Kumar, Member (J)
1. Heard both sides.
2. Learned Counsel for the appellant submits that the appellant is a carrier of Goods Transport Operator Services. The period involved is 1997-98. The show cause notice was issued to the appellant on 10.4.99 under Sections 70, 76 & 77 of Chapter V of the Finance Act, 1994. The amount of service tax was not quantified in the show cause notice. The adjudicating authority relying on the decision of the Apex Court in the case of Laghu Udyog Bharti and Ors. v. UOI 1999 105 Taxman 630 (SC) has dropped the show cause notice. In the said decision, the Hon'ble Apex Court has inter-alia, held "We have no hesitation in holding that the provisions of Rule 2(d)(xvii), in so far as it makes persons other than the clearing and forwarding agents or the person other than the goods transport operator as being responsible for collecting the service tax, are ultra vires the Act itself. The said sub-rules are accordingly quashed". The contention of the learned Counsel for the appellant is that Section 73 of the Finance Act, 1994 was not invoked asking the appellant to pay service tax, the Commissioner has wrongly refused the order and has urged the appellant to pay service tax and file return. It returned the file for the period in question. He submits that by virtue of Section 71A in the Finance Bill of 2003 filing of return was made Compulsory for the first time. The President India has assented the Finance Bill on 14th May 2003. Therefore, the liability for filing the return arose on 15.5.03 and before that there was no obligation on the part of the appellant to file any such return. The contention is that since the appellant was not obliged to file service tax return, the question of any demand of service tax, interest and penalty does not arise. To support his contention, he is relying on the decision in the case of L.H. Sugar Factories Ltd. v. C.C.E., Meerut II reported in 2004 (165) ELT 161 (T) wherein the Tribunal, inter alia, held that if the case of the appellant is not covered under Section 73 then they are not liable to pay service tax. Similar is the decision in the case of Diamond Cables Ltd. v. C.C.E., Vadodara 2005 (180) ELT 444 (T) wherein the Tribunal, inter alia, held that in the absence of issuance of show cause notice under Section 73 the question of payment of service tax, filing of return etc. does not arise. He is also relying on the decision of J.R. Fabricators Ltd. v. Commissioner of Customs & C. Ex., Vaodara 2005 (1800 ELT 445 (T), in the case of C.C.E., Meerut II v. L.H. Sugar Factories Ltd. 2005 (187) ELT 5 (SC), Gujarat Containers Ltd. v. C.C.E., Vadodara 2006 (3) STR 141 (T) and Markfed Oil & Allied Industries v. C.C.E., Chandigarh 2002 (146) ELT 466 (T).
3. Learned SDR appearing for the revenue opposes the contention of the learned Counsel and submits that the show cause notice specifically has stipulated for demand of service tax and as such, the appellant is liable to pay service tax as per the order of the Commissioner (Appeals)
4. After hearing and perusal of the records and also the case laws relied upon by the learned Counsel, we find that since the appellant was put under obligation to file service tax return for the first time by virtue of Finance Bill, 2003 as enacted in Section 71-A of the Finance Bill 2003, applying the ratio of the above decisions, we find that the adjudicating authority has correctly dropped the demand. We, therefore, allow the appeal filed by the appellant.
(Dictated and pronounced in the open Court)