Custom, Excise & Service Tax Tribunal
R.M. Chemicals Pvt. Ltd vs Nasik on 5 July, 2013
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL
WEST ZONAL BENCH AT MUMBAI
APPEAL NO: ST/100/2006
[Arising out of Order-in-Revision No: 28/NSK/06 dated 02/03/2006 passed by the Commissioner of Central Excise & Customs, Nasik.]
For approval and signature:
Honble Shri P.R. Chandrasekharan, Member (Technical)
Honble Shri Anil Choudhary, 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?
:
No
2.
Whether it should be released under Rule 27 of CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?
:
Yes
3.
Whether Their Lordships wish to see the fair copy of the Order?
:
Seen
4.
Whether Order is to be circulated to the Departmental authorities?
:
Yes
R.M. Chemicals Pvt. Ltd.
Appellant
Vs
Commissioner of Central Excise & Customs
Nasik
Respondent
Appearance:
Ms. Aparna Rao, Advocate for the appellant Shri Rakesh Goyal, Addl. Commissioner (AR) for the respondent CORAM:
Honble Shri P.R. Chandrasekharan, Member (Technical) Honble Shri Anil Choudhary, Member (Judicial) Date of hearing: 05/07/2013 Date of decision: 05/07/2013 ORDER NO: ____________________________ Per: P.R. Chandrasekharan:
The appeal is directed against Order-in-Revision No: 28/NSK/06 dated 02/03/2006 passed by the Commissioner of Central Excise & Customs, Nasik. Vide the impugned order a service tax demand of ` 3,27,792/- along with interest has been confirmed against M/s. R.M. Chemicals Pvt. Ltd., Dhule in respect of the GTA services received by them during 16/11/1997 to 15/03/1998 by setting aside the order-in-original No. ST/07/2003-04 dated 11/03/2004 and also by imposing penalties under Sections 76 and 77 of the Finance Act, 1994.
2. A notice dated 16/07/2000 was issued to the appellant demanding service tax on the GTA service received by him during 16/11/1997 to 01/06/1998. The notice was adjudicated and the proceedings were dropped vide order dated 11/03/2004 on the ground that the appellant being a small scale industry, they were not liable to pay service tax on GTA services. The said order was reviewed by the Commissioner of Central Excise, Nasik who issued a revision notice in February 2006 holding that the service tax levy on GTA service has been retrospectively validated by the Finance act, 2000 and Finance Act, 2003 and the appellant was not eligible for small scale exemption during the impugned period. The said notice was adjudicated vide the impugned order and the demand was confirmed. Aggrieved by the said order, the appellant is before us.
3. The learned counsel for the appellant submits that during the impugned period the appellant was not required to file any return under the statute and, therefore, there was no lapse on the part of the appellant to discharge service tax liability which has been confirmed under Section 73 of the Finance Act, 1994. The law was retrospectively amended vide Finance Act, 2003 which provided for filing of return by the recipient of the service under Section 71A. However, Section 73 was not amended providing for demand of service tax in respect of persons who were required to file returns under Section 71A. Section 73 was amended only on 10/09/2004 providing for demand of service tax in respect of persons who were required to file returns under Section 71A. In the present case, the show cause notice was issued in 2000; hence proceedings were dropped and the issue regarding sustainability of demand under Section 73 has already been settled by the honble apex Court in the case of L.H. Sugar Factories Ltd. vs. Commissioner of Central Excise, Meerut II 2004 (165) ELT 161 wherein the honble apex Court held that Section 73 of the Finance Act, 1994 at the relevant time did not provide for demand of service tax short-paid or short-levied or non-paid or non-levied etc. from persons who are required to file return under Section 71A. The decision of the apex Court in the said case applies squarely to the facts of the present case and, therefore, demands are not sustainable in law.
4. The learned Additional Commissioner (AR) appearing for the Revenue reiterates the findings of the Revisionary authority.
5. After going through the records and the decision of the honble apex Court in the case of L.H. Sugar Factories Ltd., cited supra, we are of the view that the ratio of the said decision squarely applies to the facts of the present case. Therefore, the impugned demand is not sustainable in law and accordingly we set aside the same and allow the appeal.
(Dictated in Court) (Anil Choudhary) Member (Judicial) (P.R. Chandrasekharan) Member (Technical) */as 4