2010 (9) TMI 16 - AT - Service Tax

Tribunal Validates 2004 Show-Cause Notices for 1997-1998 Service Tax Under Amended Section 73; Mangalam Cement Affirmed.

AGAUTA SUGAR & CHEMICALS Versus COMMISSIONER OF C. EX., NOIDA

AGAUTA SUGAR & CHEMICALS Versus COMMISSIONER OF C. EX., NOIDA - 2010 (19) S.T.R. 849 (Tri. - LB), [2010] 29 STT 60 (NEW DELHI - CESTAT) (LB) Issues Involved:1. Whether service tax in relation to goods transport service received by the appellants during the period 16.11.1997 to 1.6.1998 can be recovered by issuing a show-cause notice in the year 2004.Detailed Analysis:Applicability of L.H. Sugar Decision:The primary issue is whether the decision in L.H. Sugar Factories Ltd. v. CCE, Meerut (2004) is applicable to the present cases where show-cause notices were issued in 2004. The Tribunal in L.H. Sugar held that show-cause notices issued under Section 73 were not maintainable for services received from goods transport operators as the liability to file returns was under Section 71A, not Section 70. This decision was upheld by the Supreme Court.However, subsequent amendments in 2004 to Section 73 sought to include situations covered under Section 71A. The Tribunal in Mangalam Cement (2007) recognized this amendment, holding that show-cause notices issued in 2004 were valid, distinguishing it from L.H. Sugar where notices were issued in 2002.Statutory/Legal Developments:1. 1997: Goods transport service was made taxable, effective from November 16, 1997.2. 1998: Exemption was granted from June 2, 1998, and provisions relating to levy were removed.3. 1999: Supreme Court in Laghu Udyog Bharati held that making the customer responsible for service tax was ultra vires.4. 2000: Finance Act, 2000 amended provisions to retrospectively levy service tax on goods transport service.5. 2003: Further amendments validated the levy and required customers to file returns within six months.6. 2004: Section 73 was amended to cover situations under Section 71A, validating retrospective levy.Submissions by the Appellants:1. Time-Barred Demand: The appellants argued that demands raised in 2004 were time-barred as the relevant period was 1997-1998, and no demand could be raised before the 2004 amendment.2. Invalid Revival of Demand: They contended that a time-barred demand cannot be revived by subsequent amendments, citing S.S. Gadgil v. Lal & Co.Submissions on Behalf of the Department:1. Legislative Intent: The department emphasized the legislative intent to collect service tax from recipients of transport service, supported by amendments in 2000 and 2003.2. Applicability of Mangalam Cement: The department relied on Mangalam Cement, which validated show-cause notices issued in 2004, distinguishing it from L.H. Sugar.Findings:1. Correct Legal Position: The Tribunal found that the decisions in BPL Engineering and R.K. Marbles wrongly applied the L.H. Sugar ratio, as they did not account for the 2004 amendments. Mangalam Cement correctly interpreted the amendments, validating show-cause notices issued in 2004.2. Legislative Authority: The Tribunal emphasized that the retrospective amendments validated the levy and collection of service tax, supported by the Supreme Court in Gujarat Ambuja Cements.3. Recovery of Tax: The Tribunal noted that tax authorities have a duty to recover unpaid taxes, and the retrospective amendments provided a valid basis for issuing show-cause notices in 2004.Conclusion:The Tribunal concluded that the relevant date for determining the validity of the show-cause notices is governed by Section 71A read with Rule 7A and the amended Section 73. The decisions in BPL Engineering and R.K. Marbles do not hold precedential value, and Mangalam Cement lays down the correct legal position. The appeals were directed to be listed before the concerned Division Bench for final orders.