Customs, Excise and Gold Tribunal - Mumbai
Gujarat Containers Ltd. And Ors. vs Cce on 11 July, 2003
Equivalent citations: 2003(90)ECC197, 2003ECR853(TRI.-MUMBAI), 2003(157)ELT67(TRI-MUMBAI), 2006[3]S.T.R.141, [2007]8STT468
ORDER
Jyoti Balasundaram
1. The above appeals involve a common issue for determinantion and are hence heard together and disposed off by this common order.
2. The brief facts of the case are that Service Tax was imposed on the services provided by Goods Transport Operators in relation to carriage of goods. Earlier, service Tax was required to be paid by a person availing of such services and show cause notices were issued requiring the appellants to pay. service tax for Goods Transport Operators' services provided to them, since they had neither applied for registration with the Central Excise authorities nor paid the service tax, hence contravening Section 68 and 70 of the Finance Act, 1944, directing them to furnish quarterly return in Form ST-3 and also proposing recovery of interest for delayed payment of service tax and proposing penal action under Section 76, 77 & 79 of the Finance Act, 1944.
3. Prior to the issue of the notices, the validity of Rule 2 (d) (xvii) of the Service Tax Rules 1944 was challenged before the Hon'ble Supreme Court, which held in the case of Laghu Udyog Bharti & Others Vs. Union of India, 1999 (33) RLT911 (SC)=1999 (112) ELT365 (SC) that the Rule was ultra vires of the Act and accordingly quashed the Rule. Show cause notice was therefore dropped. The Commissioner of Central Excise directed issue of notices for revision of the orders of the lower authorities in view of the retrospective amendment of the Service Tax Rules by Section 117 of the Finance Act, 2000. In the orders in challenge in the present batch of appeals, the Commissioner has held that in view of the retrospective validation to Service Tax Rules, all four appellants were required to pay service tax. He has directed the appellants to work out the tax payable and pay the same together with interest; hence these appeals.
4. I have heard both sides and carefully considered their submissions. I find that in the show cause notices in the present batch of cases, there is no specific demand of any quantum of service tax and the notices only called upon appellants to apply for registration and file returns. In this factual background, the Tribunal's order in the case of Allied Instruments Pvt. Ltd. & Others, Order No. CI/4412 to 4507 dated 24712/2002 is squarely applicable. In this decision, it has been held that on the question of demand of service tax, the appellants are entitled to succeed in the light of the earlier decision in Markfed Oil & Allied lndustries Vs. CCE, Chandigarh, 2002 (53) RLT 276, wherein the Commissioner's order for payment of service tax with interest was set aside on the ground that the show cause notice was not issued under Section 73 of the Finance Act, but it was issued only under Section 77 for imposition of penalty on account of failure to file returns. In that case, the argument of the Ld. SDR that the notice is to be read with a composite whole ol the notice does clearly states that the Goods Transport Operators have not paid service tax to ihe Govemment as provided in the Service Tax Rules and, therefore, the notice is to be treated as a notice for recovery of service tax also, has been negated. The later decision of the Vidhyachal Air Products Pvt. Ltd. Vs. CCE, Raipur, 2002 (53) RLT 908, the same view has been taken. It is also brought to my notice by the Ld. Counsel for the appellant that the view of the Tribunal is fortified by the decision of the Hon'ble Supreme Court in the case of Metal Forgings & Anr. Vs. Union of India, 2002 (53) RLT507 (SC), wherein the Apex Court has held that the issue of show cause notice in a particular form is a mandatory requirement and that the notice must also indicate the amount dt inailded and call upon the assessee to show cause.
5. Following the ratio of the above decision, I set aside the demand of service tax raised in the impugned orders-in-revision and allow the appeals.