Karnataka High Court
Commissioner Of Central Excise vs M/S Bellary Steels And Alloys Ltd on 29 July, 2011
Bench: V.G.Sabhahit, B.Manohar
C.E.A.No.75/2007 BY CESTAT, SOUTH ZONAL BENCH, BANGALORE PRODUCED AS ANNEXURE~C AND ALLOW THE vy'A'P,yPEAL WITH COSTS, IN THE INTEREST OF' JUSTICE. S. THIS APPEAL COMING ON FOR FINAL HEARiN'§§;'*i"iéii':3 V.G.SABHAHIT.J., DELIVERED THE FOLLOWING: ' ~ t ' JUDGMENT; " This appeal is filed by the by the order passed by the C__u's.toms", vExe.,is"e_.: Servicei' Tax Appellate Tribunal; ..South"'ZiioVnai'Bench,'at Bangalore, in Appeal Nosr/80/2oioe._'wrh-gféin filed by the revenue has that the show Cause notice of the Finance Act could not have been issued who are assessees u/s 71--AV.a_s suichyi P61'-soiv1sii"'are not covered by Section 73 .---...,fol1oWing,th~e. jud;<;?rr1'e'h't of the Supreme Court iri the case gr' OF CENTRAL EXCISE, MEERUT-II FACTORIES LTD., (2005 (187) ELT 5 \%9> C.lE).A.No.7.'3/2()()7 2. The appeal has been admitted for consideration of the following substantial question of law as fran7.ed"-i_n'~V.the appeal memo: "a) Whether under _the__ fabtg-A circumstances of Authority is correct iniisaiyzing thlalt.t]vVo'tice issued to the ofthe Act are not {ia.h:Ze.to"1oay the vtz:1.xP§ b) Whether and circumstaneesjofe iicasenlVthe..l:TribunaZ is right' iljholding Amendment ;1'C_c1/__:.€"~~.'_'LVO"' to demand .9 c) ____ facts and _ eiieuvniresltaenoesrpf the case the Tribunal is 'right that Goods Transport not liable to pay Service facts leading up to this appeal are as follows: it "l*he°:. respondent having its registered office at
l'*:Anan't«apur Road, Bellary, have availed the service of Goods Transport Operator during the period from of C.E.A.No.75/2007 16.11.1997 to 02.06.1998 without getting themgseglves registered with the Central Excise Department under section 69 of Chapter V of the without following the statutory the Service Tax Rules, 1994;withoutillpaymefitglyiof:
tax and without following laid down in the Service the said period, the receiver of to pay service tax @ 5% ivthe"~service used by him in terms oi and of the Finance Act, 1994. retrospectively and a new Section 1994, has been inserted to re41;%alid.ate tl"1eo_i_gcollection of Service Tax payable by the ofglservyiicevs of Goods Transport Operators (GTOS) for £ne"T__«pér{5;1_ 16.11.1997 to 02.06.1998 the
-- amer'1dn"1en'ts made are in continuation to the earlier lifiar11'e--ridniients which were made in Section 65 and 66 Vide * Rigriiance Act, 2000. As per amended Rules, a new Rule 7A been inserted Vide Notification No.4/2003 dated 91"
C.E.A.N0.75/2007 : 5 : 14.05.2003 which provides that the service rece:i_'i.re'rv._'4in case of service received by GT Os for the shall be required to file return irwform copy of TR6 challan within a peri0d date of 13.05.2003. In casesassessiee.failis._!t0~--:vifi'le' return}. for the aforesaid period," thegin«tier:est-»..and.penalty; are liable to be imposed. The to file the return within" failed to pay the service during the period mentioned..supra:ii;xth1Ch to Rs.2,16,620/-- @ the rate ()VVf?V""5C;/[(?" value of Rs.43,32,39l/-- paid during the«--.period._menti.0'ned supra and show cause notice g_ wa_s5.issued for imposition of the said teu< and interest and penalty_ .2004 and after the respondent replied to the"»7said-i."p:--.sh=ow cause notice, the original authority conifirrfiediiithe order rejecting the cause shown and orrideredi to issue demand for payment of tax of W,.gRs,i25,l6,620/A and penalty u/s 76, 77 and 78 of the Act. .0 ___Ei3eing aggrieved by the same, appeal was preferred in W' CE./\.No.75/2007 appeal No.14/2006 by the assessee Commissioner of Central Excise appellate authority by order dated C appeal by setting aside the.7or._dVer iofgtlfie and being aggrieved by the reyenue.lp_rveferfred appeal before the Customs; Appellate Tribunal wherein the:A.ord.er Commissioner was confirméidiolilh subject matter is COV€T€d by Siupreme Court in CCE MEE12UT'vsV;tL;yLH"SUGAR FACTORIES LTD., (2005) (137) ELT jihe appeal. Being aggrieved by the same,i"thi'sVa'ppie.al*=i's filed by the revenue which is for eolnsideration of the substantial question of the appeal memo by order dated i_1".Q9.2®O_7__.
_ 'Heard the Counsel for the appellant and the learned V' Counsel for the respondent.
waft A.No. 75/2007
5. Learned counsel for the appellant subn;-ittedthat' decision of the Supreme Courftmiis"n'o't.¢ the 7 respondent in the present case u/s 71--A of the Act and the appetllateliauthlorities were not justified notice and giving reliefto the
6. Learneei» it respondent argued in support by the Tribunal and submitted "that arise for determination about show cause notice has been alre.ady*decided._Vlby the Hon'ble Supreme Court in the LH .' Su,gar_Vl+'actorjy's case referred to above. He also submitted heir l&e§l%'T1ES%l£€"LE3flc1§2z timami VS,4GUJAI_?g3T CARBON AND INDUSTRIES' LTD., (2008 (12) 3 (SC) and it has been followed by the division of this Court in CEA 52 and 53/2005 dated i2:5;o2.2o1o.
W' C.__l:j.A.No.75/2007
7. We have carefully considered the co.n.te:fitvion:s ._of the learned counsel appearing for the partijest_ahi_d-.sCr'u.tinised the material on record.
8. The material on Wfbofdptt ishowiithat there is no doubt about theiiiidahte v'the.Vamendment was made to the provisions-..of #r:"e.t'rospectively with effect from. _1 notice is issued on viidelicision of the Supreme Courta:andi_A it cannot be disputed that the u/s 7l--A of the Act any show cause" issued u/s 73 of the Act. The relied the Tribunal of the Apex Court in 'A case has been reiterated in the subseqiieintjudgment in Gujarat Carbon Industries' case referred to by the learned counsel for the respondent wherein it is clearly stated that class of persons who come '.m'aér Section 71A are not brought under net of Section ""73 and show cause notice issued to the assessee invoking Uzi/' ' (}'.E.A.No.75/2007 Section 73 are not maintainable. Therefore, following the judgment of the Supreme Court and this cour.t;@§veT'~ho1d that substantial question of law has to_.A*'oe against the revenue and in favour .of_the ';'esjjo:1fvdefit._'_AwV V Appeal is dismissed. _ o o JUDGE JUDGE