Customs, Excise and Gold Tribunal - Delhi
Cce vs Kashyap Sweetners (P) Ltd. on 22 February, 2006
Equivalent citations: 2006(108)ECC384, 2006ECR384(TRI.-DELHI)
ORDER M.V. Ravindran, Member (J)
1. This appeal is directed against Order-in-Appeal dated 25.2.2005 wherein the respondent's appeal was allowed.
2. The issue involved in this case is regarding service tax liability fastened upon the respondents in respect of services received by them in the case of Goods Transport Operators. By a retrospective amendment vide Section 117 of Finance Act, 2000 the service receivers were required to pay service tax in respect of GTO, provided, demand of service tax was raised within the time as provided by retrospective amendment. In this case the demand was raised in October, 2002 i.e almost 2 years after amendment of the Finance Act. Adjudicating proceedings culminated in confirmation of demand of service tax and imposition of penalty. On appeal the Commissioner (Appeals) set aside the Order-in-Original on the ground of time bar. Hence, this appeal by the Department.
3. None appeared for the respondents despite notice. Heard learned D.R. It is the submission of the learned D.R. that the issue involved in this case is in respect of services received by the respondents from G.T.O. By retrospective amendment in Finance Act, 2000 the Government had every intention to direct the recipient of service receiver of GTO to discharge the duty liability and it can not get be narrowed down that the recipient of service of GTO need not covered under service tax net.
4. Considered the submissions made learned D.R. I find that the Commissioner (Appeals) has allowed the appeal of the respondents by observing as under:
I find that the issue to be decided in the present Appeal relates to the demand of Service Tax confirmed by the Adjudicating Authority, The Appellants have submitted that the demand is not sustainable in view of the judgment of the Tribunal in case of L.H. Sugar Factories Ltd. (supra) cited by them. They have also referred to the judgment of the CESTAT, South Zone Bench, Chennai, vide Order No. 930-931/2004 dated 20.10.2004 in respect of M/s. BID Parry Industries Ltd., wherein the Tribunal based on the provisions contained in Section 117 of the Finance Act, 2000 and on the basis of legal opinion given by the Additional Legal Advisor to the Govt. of India, have held that the demand of service tax raised beyond 12.5.2000 would be not sustainable and also ilt would be time barred in terms of Section 73 of the Finance Act, 1994. In the present case also the notice for recovery of service tax was issued in October, 2002 and hence the same would not be sustainable in terms of the decisions of the Tribunal referred to above. Accordingly, I have no hesitation in holding that the demand confirmed in impugned order is not sustainable and hence the same is set aside. The penalty imposed on the Appellants is also set aside in view of the above.
From the above it is very clear that the provisions of Section 117 bringing the retrospective amendment would operate within the time frame provided for the recovery is correctly interpreted by the learned Commissioner (Appeals). Since in this case it is not disputed that the show cause notice was issued in October, 2002, almost after 2 years, of the retrospective amendment, I find no infirmity in the Order-in-Appeal of the Commissioner (Appeals). Further the case of L.H. Sugar v. CCE, Meerut relied upon by the Commissioner (Appeals), was taken up by the department to the Supreme Court and the Hon'ble Supreme Court was pleased to dismiss the appeal of the department as reported in 2005 (187) ELT 5 (SC).
5. In view of the above I do not find any merit in the department's appeal. Appeal is dismissed.
(Operative portion pronounced in the Open Court.)