Custom, Excise & Service Tax Tribunal
Nirma Ltd vs C.C.E., Indore on 11 January, 2012
CUSTOMS EXCISE & SERVICE TAX APPELLATE TRIBUNAL, West Block No.2, R.K.Puram, New Delhi COURT-II Date of hearing/decision: 11.1.2012 Service Tax Appeal No.408 of 2008 Arising out of the order in appeal No.IND-I/90/2008 dated 24.2.2008 passed by the Commissioner (Appeals I), Customs , Central Excise & Service Tax, Ahmedabad. Nirma Ltd. .. Appellants Vs. C.C.E., Indore . Respondent
Appearance:
Shri M.A. Patel, Consultant for the appellants Shri K.K. Jaiswal, A.R. for the respondent Coram: Honble Mr. D.N.Panda, Judicial Member Honble Mr. Rakesh Kumar, Technical Member Oral Order No.____________________ Per Mr. D.N. Panda:
Learned Counsel appearing for the appellant precisely submits that the proceeding initiated by show cause notice dated 31.12.98 ended with no liability following the decision of the Apex Court in Laghu Udyog Bharati vs. Union of India reported in 1999 (112) ELT 365 (SC). The said proceeding was revalidated by show cause notice dated 9.2.2004 under the premise that the Validation Act, 2000 through Section 116 thereof has revalidated the proceeding.
2. Learned Counsel says that no activity which was not taxable in absence of law and reached to finality by dropping in terms of earlier order shall not be taxed by revalidation law. He relies on several decisions of the Tribunal and different Courts.
3. To get a clear position of law on the contentions issued whether proceeding dropped before revalidation law shall revive after revalidation, we took assistance of Shri A.R. Madho Rao, learned Advocate who guided that Section 73 of the Finance Act has in-built limitation provision which is to fasten liability. In this case, since the appellant is recipient of service was not expected to file return at the relevant point of time. Accordingly, the proceeding is fully time barred when it had no obligation to file return. He further submits that proper guideline has been issued by the Honble Gujarat High Court in the case of C.C.Ex & Cus., Vadodara I vs. Eimco Elecon Ltd. reported in 2010 (20) STR 603 (Guj.). The view of Honble High Court of Gujarat is also the view of the Honble Kerala High court as has been reported in 2011 (24) STR 283 (Ker.) in Precot Mills Ltd. vs. Union of India.
2. On the other hand, learned Representative for Revenue submits that the proceedings are revalidated by the Validation Law and shall be a validated proceeding.
3. We have heard both sides as well as amicus curiae on the dutiable issue. No doubt, under the provision of law at the relevant point of time when recipient was not required to discharge tax liability for availing GTA service filing of return did not arise. Once such legal obligation was not there, it cannot be said that Section 73 of Finance Act, 1994 is invokable. Therefore, the limitation provision appearing in Section 73 does not bring this appellant to the fold of law when there was no obligation under law was incurred. Accordingly, learned Counsels prayer for allowing the appeal without re-adjudication is tenable. Thus appeal is allowed.
(D.N. Panda) Judicial Member (Rakesh Kumar) Technical Member scd/ Radicos Learned Counsel for the appellants submits that the arrangement between the parties with the appellants and its job worker is patent from the page 825 to 840 of paper books filed separately. They are business auxiliary provided by them when its brand name is used by the job worker for manufacture for intended goods for marketing at the control of the appellants. Such feature rules out the taxability.
2. Learned Authorised Representative appearing on behalf of the Revenue states that the entire burden suggests that there is a business auxiliary provided.
3. Heard both sides and perused the records. This Bench had an occasion to hear similar such matter.