Customs, Excise and Gold Tribunal - Delhi
Inani Marbles And Industries Ltd. And ... vs Cce on 17 October, 2007
Equivalent citations: [2008]12STJ398(CESTAT-NEW DELHI)
ORDER P.K. Das, Member (J)
1. Common issue is involved in these appeals and, therefore, all are taken up together for disposal.
2. The issue involved in these appeals is as to whether the Revenue can issue show cause notice under Section 73 of the Finance Act, 1994 for the recovery of the service tax not paid during the period 16.11.97 to 1.6.98 in respect of the goods transport service.
Heard both sides and perused the records.
3. It reveals that the Commissioner passed the impugned order following the observation of earlier Revision Order No. 54-150/JP-II/2005/ST dated 26.10.2005 passed by the Commissioner of Central Excise. Ld. Advocate submits that the appeals filed by the assesses against the Revision Order dated 26.10.2005 were allowed with consequential relief by the Tribunal's Final Order No. 126-221/07-ST dated 18.10.2007. The relevant portion of the said decision is reproduced below:
2. The issue that arises for consideration in these appeals is whether the revenue could issue show-cause notice under Section 73 of the Finance Act, 1994 for the recovery of Service Tax not paid during the period 16.11.97 to 1.6.98 in respect of goods transport service.
4. The contention of the ld. Counsel for the appellants is that this issue had directly arisen before this Tribunal in the case of L.H. Sugar Factories Ltd. v. Commissioner of Central Excise, Meerut and the Tribunal held that such recovery is not permissible even in terms of the amendments to Section 73 under Finance Act 2003. It is also being pointed out that this decision was taken up by the Revenue in appeal before the Hon'ble Supreme Court and the Supreme Court was pleased to dismiss the appeal. The contention of the ld. Counsel is that the issue is no more open in view of the judgment of the Hon'ble Supreme Court.
5. We find that the Hon'ble Supreme Court had considered the effect of the amended legal position, in the appeal filed by the Revenue against the judgment of this Tribunal in the case of L.H. Sugar Ltd. and had ruled as under:
We have heard counsel for the parties.
2. Learned Counsel for the parties have drawn our notice to the relevant provisions of the Finance Act as it stood in the year 1994 and thereafter as it stood after the various amendments to the Act in subsequent years. Having considered the relevant provisions of the Act, the Tribunal has, inter alia, recorded the following conclusion.
The above would show that even the amended Section 73 takes in only the case of assesses who are liable to file return under Section 70. Admittedly, the liability to file return is cast on the appellants only under Section 71A. The class of persons who come under Section 71A is not brought under the net of Section 73. The above being the position show cause notices issued to the appellants invoking Section 73 are not maintainable.
3. We entirely agree with the conclusion arrived at by the Tribunal. We find no merit in these appeals and the same are accordingly dismissed. No order as to costs.
6. A perusal of the above judgment brings out that a notice under Section 73 could not have been resorted to by the Revenue for the purpose of recovery of tax not paid during the material period. This decision is directly on the dispute arising in these appeals and has to be followed by all the subordinate courts and tribunals:
7. In the result, the present appeals are allowed with consequential relief, if any, to the appellants.
7. Ld. DR on behalf of the Revenue relief upon the decision of the Tribunal in the case of Commissioner of Central Excise, Jaipur v. Mangalam Cement Ltd. 2007 (7) S.T.R. 673 (Tribunal-Delhi) Ld. Advocate submits that the same Division Bench of the Tribunal in the case. of CCE, Raipur v. Jaiswal Equipment and Holdings Pvt. Ltd. 2007 (81) RLT 904 (CESTAT-Delhi) held on the similar issue as under:
Without issuance of a show cause notice under Section 73 read with Section 71A in which it would be the extended date, it would have been impossible for the Revenue to have undertaken the proceedings of the nature contemplated by Section 73 of the Act for the recovery of the fax that had escaped assessment in respect of the returns which were not filed. The show cause notice dated 29.11.2002 was wholly inadequate and inapplicable to the contingency that arose by virtue of the extended time limit for filing of the returns and payments of service tax by the extended date. Perhaps the Revenue ought to have been more vigilant by revising their notices which were earlier issued to bring them in tune with new provisions and the new situation that enabled the assessee to file a return and pay tax by 13.11.2003 under the law and by 30.11.2003 under the time extended by the Hon'ble Supreme Court. The requirement of issuance of show cause notice under Section 73 read with Section 71A cannot be dinted by applying "no prejudice" rule, because proceeding cannot be undertaken under Section 73 without issuance of the show cause notice that would give an opportunity to the assessee to explain why the recovery should not be made for non-compliance of the amended provisions. For these reasons, the demand pursuant to the show cause notice issued earlier, cannot be sustained. It is, however, pointed out by the learned Counsel for the respondent, from the adjudicating authority's order that, the tax has already been paid. The learned authorized representative for the Department, however, states that there are no instructions given to him to the effect that the tax was, in fact, paid. He submitted that if the tax is already paid suo moto, there will not be any question of any refund because the liability has been upheld. No such question arises at present in this appeal of the Revenue.
8. It is seen that in the case of Mangalam Cement Ltd. (supra), show cause notices were issued in the year 2004 and in the case of Jaiswal Equipment & Holdings Pvt. Ltd. (supra), show cause notices were issued in the year 2002. Ld. Advocate contended that in the present appeals, the show cause notices were issued in 2002 and, therefore, the case of Jaiswal Equipment & Holdings Pvt. Ltd. (supra) is applicable in this case. Apart from that in the present appeals, the Commissioner relied upon the Order dated 26.10.2005, which was set aside by this order by the Tribunal by Final Order dated 18.4.2007 and, therefore, the impugned orders cannot be sustainable. Accordingly, all the appeals are allowed with consequential relief.
Order dictated & pronounced in open court on 17.10.2007.