TaxTMI 
TaxTMI 
2011 (2) TMI 671
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.... operator's service (GTO service) for transportation of materials to their factories, but did not pay service tax on the freight, nor did they file any service tax return. The department issued show-cause notices, in December 2001 in the case of M/s. Adinath SSK Ltd. and in 2002 in the case of other assessees, demanding service tax on the freight paid by them for the above transportation of materials. Recipients of GTO service were liable to pay service tax under the proviso to sub-section (1) of Section 68 of the Finance Act, 1994 for the period from 16-7-1997 to 2-6-1998. Hence the above demand of service tax. The show-cause notices also demanded interest on tax and proposed penalties. These proposals were contested. In adjudication of th....
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....ustries Ltd. v. CCE, Indore - 2006 (3) S.T.R. 14 (Tri.-Del.). It has been pointed out that the said decisions (relied on by the SDR) are based on the apex court's judgment in Gujarat Ambuja Cements Ltd. v. UOI, 2005 (182) E.L.T. 33 (S.C.) = 2006 (3) S.T.R. 608 (S.C.). According to the learned SDR, the issue involved in the instant cases can be best resolved by following Gujarat Ambuja Cements Ltd. (supra) rather than L.H. Sugar Factories (supra). Both sides have extensively referred to the relevant provisions of the Finance Act, 1994 and the decisions rendered by this Tribunal from time to time by considering the amendments to such provisions. 4. In the case of L.H. Sugar Factories (supra), this Tribunal had occasion to consider chall....
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....e short but self-contained judgment of the Apex Court is reproduced below :- "[Judgment]. - 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 assessees 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 ....
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....it had earlier, by an interim order dated 17-11-2003, extended the period for filing of returns by recipients of GTO service and C & F service by a period of two weeks. Again, in para 44 of its judgment, the apex court observed that the liability to pay interest on outstanding amounts by such assessees would arise only if the dues were not paid within the aforesaid period of two weeks. The learned SDR has construed these observations of the apex court to mean that, where a person is liable to pay service tax under the proviso to Section 68(1) and to file returns under Section 71A of the Finance Act, 1994, he has to do so within the extended period granted by the court irrespective of the provisions of Section 73 of the Act. We have found it....
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....n 73 of the Finance Act, 94 has omnibus application to both the categories of assessees and, therefore, the department can invoke this provision for demanding service tax from both these categories of assessees in appropriate cases. This dispensation of legal provisions is not obtaining in the case of L.H. Sugar Factories (where the show-cause notices were issued in the year 2002) as in the instant cases (where the show-cause notices were, admittedly, issued in December 2001 or on various dates in 2002). Before 10-9-2004, Section 73 of the Finance Act could be invoked for recovery of service tax from a person who was liable to file returns under Section 70 of the Act but omitted/failed to do so. Section 71A, the provision under which recipi....
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....t behind the relevant provisions of the Finance Act, 1994. It has been submitted that the intention was to authorize the Revenue to recover service tax dues from both categories, viz., service providers and recipients of GTO/C&F services. According to the learned SDR, the text of Section 73, as it stood prior to 10-9-2004, should be liberally construed so as to achieve the legislative purpose. In this connection, he has relied on CIT, Thiruvananthapuram v. Baby Marine Exports - 2007 (211) E.L.T. 12 (S.C.), Ponds India Ltd. v. CTT, Lucknow - 2008 (227) E.L.T. 497 (S.C.) and Directorate of Enforcement v. Deepak Mahajan - 1994 (70) E.L.T. 12 (S.C.) (paragraphs 24 to 27). It has been argued that courts and tribunals must, if necessary, suppleme....