Custom, Excise & Service Tax Tribunal
M/S.Kanpur Trading Co.Pvt.Ltd vs Cce Bhopal on 26 September, 2011
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL,
WEST BLOCK NO.II, R.K. PURAM, NEW DELHI-110066.
SINGLE MEMBER BENCH
Excise Appeal No.565 of 2008-SM
(Arising out of Order-in-Appeal No.82/BPL/2008 dt.13.6.08 passed by the Commissioner (A),CE & C, Bhopal)
Date of Hearing/Decision: 26.09.2011
For approval and signature:
Honble Mrs.Archana Wadhwa, Member (Judicial)
1
Whether Press Reporters may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?
2
Whether it should be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?
3
Whether Their Lordships wish to see the fair copy of the Order?
4
Whether Order is to be circulated to the Departmental authorities?
M/s.Kanpur Trading Co.Pvt.Ltd. Appellant
Vs.
CCE Bhopal Respondent
Present for the Appellant: Shri A.P.Mathur, Advocate
Present for the Respondent: Shri Anil Khanna, SDR
Coram: Honble Mrs.Archana Wadhwa, Member (Judicial)
ORDER NO._______________
PER: ARCHANA WADHWA
After hearing both sides, I find that the service tax of Rs.1,12,992/- stands confirmed against the appellants in respect of GTA services received by them during the period 16.11.1997 to 2.6.1998, by way of issuance of show cause notice dated 28.12.2006. In addition penalty of identical amount stands imposed under section 76 & 78 of the Finance Act, 1994.
2. It is seen that the said amount has been confirmed in view of the retrospective amendment vide section 116 and 117 of the Finance Act,2000, vide which section 71A was inserted retrospectively requiring service recipient to file return within six months from the date of enactment i.e.12.11.03. The lower authorities have confirmed service tax on the sole ground that the appellants failed to file ST-3B return as required under section 71A and also failed to apply Service Tax registration in terms of section 69 of Finance Act, 1994. The demand notice stands issued beyond the period of limitation, in fact, beyond the maximum limitation period of five years, the penalty under the law. Apart from above, I note that earlier show cause notice dated 9.10.02 stands issued to the appellants in respect of the same period, which was ultimately set aside by the Commissioner (Appeals). For better appreciation, I reproduce the para 6 of the impugned order as under:-
In the present case, earlier SCN dt.09/10/2002 for the same period and same amount was issue and the same was confirmed by the lower authority vide OIO dt.08/07/2005 under section 71 (2) alongwith penalty of Rs.25,000/- and interest. The Commissioner (Appeals), Bhopal vide OIA No.150-150-151-CE/bpl/2005 dt.24/11/2005 allowed the appeal on the ground that the demand under section 73 is not sustainable.
4. As is clear from the above, earlier proceedings referring to the demand stands settled in favour of the assessee. As such, it was not open to the Revenue to re-adjidicate same by way of issuance another show cause notice. In view of the above, I find no merit in the impugned order, which accordingly is set aside and the appeal is allowed with consequential relief to the appellants.
(Pronounced in the open court) (ARCHANA WADHWA) MEMBER (JUDICIAL) mk 4