Customs, Excise and Gold Tribunal - Mumbai
Diamond Cables Ltd. vs Commissioner Of Central Excise on 17 March, 2004
Equivalent citations: 2005(180)ELT444(TRI-MUMBAI), 2006[3]S.T.R.258
ORDER Jyoti Balasundaram, Member (J)
1. The above appeal out of the order of the Commissioner of Central Excise, Vadodara, directing payment of service tax on the gross amount of transport charges paid by the appellants to goods transport operators, including insurance charges for transport of goods during the period 16.11.1997 to 1.6.1998, directing payment of interest for delayed payment of the service tax and directing filing of tax returns for the quarters ending December 1997, March 1998 and June 1998.
2. The appellants have asked for a decision on merits, stating that the matter may be decided in the light of the Tribunal's order No. C-I/4412 to 4507/WZB/2002 dated 23.12.2002 reported in 2003 (53) RLT 676. We therefore heard the learned SDR and perused the records.
3. In the order cited supra, the Commissioner's order for payment of service tax with interest was set aside on the ground that show cause notice was not issued under Section 73 of the Finance Act, 1994 which provides for issue of notice if the value of taxable service has escaped assessment due to omission or failure on the part of the assessee to make the return under Section 70, but was issued only under Section 76,77 and 81. The Tribunal relied upon its earlier order in the case of Markfed Oil & Allied Industries vs. CCE, Chandigarh 2002 (53) RLT 276 wherein demand of service tax with interest was set aside on the ground that notice was not issued under Section 73 of the Finance Act 1994, but under Section 77 for imposition of penalty on account of failure to file returns. In the present case, notice has been issued in terms of Sections 76 and 77 for payment of interest and for imposition of penalty. The ratio of the earlier orders would therefore squarely apply to the present case and following the same we set aside the impugned order directing payment of service tax together with interest, and allow the appeal.