Custom, Excise & Service Tax Tribunal
Cce & St, Trichy vs M/S. Dalmia Cements (B) Ltd on 13 May, 2015
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL SOUTH ZONAL BENCH AT CHENNAI ST/74/2006 (Arising out of Order-in-Appeal No. 146/2005 (TRY)(ADK) dated 16.09.2005, passed by the Commissioner of Central Excise (Appeals), Trichy). CCE & ST, Trichy : Appellant Vs. M/s. Dalmia Cements (B) Ltd. : Respondent
Appearance Shri L. Paneer Selvam, Adv., For the applicant Shri J. Shankararaman, DC (AR) For the respondent CORAM Honble Shri R. PERIASAMI, Technical Member Honble Shri P.K. CHOUDHARY, Judicial Member FINAL ORDER No. 40555 / 2015 Date of Hearing/Decision: 13.05.2015 Per: R. Periasami Revenue filed this appeal against the Order-in-Appeal dated 16.09.2005.
2. The short issue involved in this case is that consequent on the enactment of Finance Act, 2000 and the Finance Bill, 2003, the service tax payment on GTO was brought under reverse charge mechanism where the recipient shall pay service tax. Therefore, the respondent was liable to pay service tax. The adjudicating authority issued show cause notice dated 12.04.2001 under Section 73 demanding service tax for the period March 1998 to May, 1998 and confirmed the demand. The Commissioner (Appeals) set aside the adjudication order by relying the Honble Supreme Court decision in the case of CCE, Meerut-II Vs. L.H. Sugar Factories Ltd. 2005 (187) ELT 5 (SC). Hence the Revenue appeal.
3. Ld. AR on behalf of the Revenue reiterated the grounds of appeal and relied upon the Honble Madras High Courts order dated 31.10.2013 in the case of CCE, Pondicherry Vs. CESTAT, Chennai and M/s. Pondicherry Paper Ltd. and also Agauta Sugar & Chemicals Vs. CCE, Noida 2010 (19) STR 849 (Tri.-LB).
4. On the other hand, the Ld. Advocate on behalf of the appellant reiterated the findings of the OIA and submits that the lower authority has correctly allowed their appeal. Revenues main ground of appeal is that even though the Honble Supreme Court dismissed the appeal filed by the department, two civil appeals were subsequently admitted by the Honble Supreme Court on similar issue in the case of Gujarat Carbon & Industries Ltd. To keep the issue alive Revenue preferred this appeal. He further submits that the Honble Supreme Court had already dismissed in the batch of appeals in the case of CCE, Vadodara-1 Vs. Gujarat Carbon & Industries Ltd., - 2008 (12) STR 3 (S.C.). He also submits that the Honble High Court of Madras in the case of CCE, Trichy Vs. Thiru Arooran Sugars Ltd. 2014 (33) STR 369 (Mad.), dismissed the Revenue appeals by relying the Honble Apex Court judgment in the case of both Gujart Carbon Industries Ltd. and Thiru Arooran Sugars Ltd.
5. We have carefully considered the submissions of both the sides. On perusal of the records we find that the lower appellate authority allowed the appeal by relying the Honble Supreme Court decision in the case of L.H. Sugar Factories Ltd. The Revenues main ground is that on similar appeals the Honble Supreme Court has admitted the revenue appeals on identical issue in Civil appeal No. 1618/2005 filed by the Commissioner of Central Excise, Vadodara in the case of Gujarat Carbon & Industries Ltd., and Civil Appeal No. 7144/2005 filed by the Commissioner of Central Excise in the case of Sundaram Fastners. We find that the lower appellate authority has relied on the Honble Apex Court judgment in the case of L.H. Sugar Factories Ltd., which is still in force. However, we find that the Honble Supreme Court had dismissed both the appeals in the case of Civil appeal No.1144/2005 order dated 18.08.08, in the case of Gujarat Carbon & Industries Ltd. The relevant portion of the said decision is reproduced as under:-
.?It is to be noted that in an identical case in Commissioner of Central Excise, Meerut-II v. L.H. Sugar Factories Ltd. and Ors. - (2005 (13) SCC 245), this Court agreed with similar conclusions of the Tribunal. In the said case, the conclusions of the Tribunal were as follows:
The above would show that even the amended Section 73 takes in only the case of assesses who are liable to file return under Section 70. Admittedly, the liability to file return is cast on the appellants only under Section 71A. The class of persons who come under Section 71A is not brought under the net of Section 73. The above being the position show cause notices issued to the appellants invoking section 73 are not maintainable.
9.?In view of what has been stated in L.H. Sugars case (supra) we do not find any merit in the present appeals which are accordingly dismissed.
Honble Supreme Court in the above case, affirmed the decision in the case of L.H. Sugar Factories Ltd. Further, the Honble High Court of Madras in the case of CCE Vs. Thiru Arooran Sugars Ltd. (supra) had dismissed the Revenue appeal. By relying the above Apex Court decision. The relevant portion of the said decision is reproduced as under:-
4.?As far as the present case is concerned, show cause notice under Section 73 of the Act was issued on 19-10-2001. This was issued on the strength of validation provision on the levy of Service Tax on the recipient of goods transport operator service. The first Appellate Authority viewed that having regard to Section 71A under the Finance Act, 2003 with retrospective effect requiring the assessee like the respondent herein to file return, cases falling under Section 71A of the Act was also to be taken under the general provisions of Section 70 of the Finance Act, 1994. Thus, the First Appellate Authority confirmed the demand. Aggrieved by the same, the assessee went on appeal before the Customs, Excise and Service Tax Appellate Tribunal. The Tribunal followed the decision of the Customs, Excise and Service Tax Appellate Tribunal, New Delhi in the case of L.H. Sugar Factories Limited & Os. v. CCE, Meerut-II - 2004 (61) RLT 142 = 2006 (3) S.T.R. 230 (Tribunal) = 2004 (165) E.L.T. 161 (Tribunal) wherein the Bench had elaborately dealt with the effect of introduction of Section 71A in the Finance Act, 2003 and also Section 73, as amended by Finance Act, 2003 and allowed the appeal. Thus when the above decision of the Tribunal in L.H. Sugar Factories Limited was confirmed by the Apex Court, in the decision reported in (2005) 13 SCC 245 = 2006 (3) S.T.R. 230 (Tri. - Del.) = 2004 (165) E.L.T. 161 (Tri. - Del.) - CCE v. L.H. Sugar Factories Limited, and in the subsequent decision reported in 2008 (12) S.T.R. 3 - Commissioner of Central Excise, Vadodara-I v. Gujarat Carbon & Industries Limited, the Apex Court followed the said decision, the facts herein being identical, we have no hesitation in confirming the order of the Tribunal, thereby rejecting the Revenues appeal.
5.?Even though learned standing counsel for the Revenue pointed out that the Validation Act had not been considered in those judgments, yet, on facts, we do not find that would make any difference at all since, there were no proceedings prior to issuance of show cause notice dated 19-10-2001 even for application of the validation provisions.
6.?Secondly, when Section 71A made specific provision on the filing of the return by the recipient of the services and effect of it was considered vis-a-vis in Sections 70 and 73, we have no hesitation in rejecting the Revenues contention.
In view of the above, Revenues reliance on the Honble High Court of Madras order dated 31.10.2013, in the case of CCE, Pondicherry Vs. CESTAT, Chennai and M/s. Pondicherry Paper Ltd., is not applicable. Further, the Honble High Court Madras in the above referred order has allowed in favour of the appellants. By respectfully following the Honble Apex Courts decision and Honble Gujarat High Court order, we do not find any infirmity in the order passed by the lower appellate authority. Accordingly, Revenue appeal is dismissed and the impugned order is upheld.
(Order dictated and pronounced in the open Court)
(P.K. CHOUDHARY) (R. PERIASAMI)
JUDICIAL MEMBER TECHNICAL MEMBER
BB
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