TaxTMI 
TaxTMI 
TaxTMI 
2007 (6) TMI 31
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....e services provided by the GTOs was leviable on the recipient of the services for the period from 16-11-1997 to 1-6-1998. The respondent did not obtained registration under Rule 4 of the Service Tax Rules nor paid Service Tax under Rule 6 and did not file returns as required by Rule 7. On examination of the ledgers produced by the respondents, it appeared that the entire amount of taxable service had escaped assessment and the Service Tax calculated thereon was Rs. 9,981/-. As no return was filed under Section 70 of the Finance Act, 1994 and material facts were not disclosed, show cause notice was issued to the respondent on 22-11-2002 for recovery of the Service Tax and penalties. I the show cause notice filed on 30-12-2002 (wrongly typed as 30-6-2002) the respondent pleaded that, it was a SSI Unit and, therefore, not liable to pay Service Tax. The respondent relied upon the decision of Hon'ble Supreme Court in Laghu Udyog Bharati v. Union of India reported in 2006 (2) S.T 276 (S.C.) = 1999 (112) E.L.T. 365 (S.C.), in which Rule 2(d)(xii) was held to be ultra vires the Act. On the basis of the material on record, the adjudicating authority held that, the liability to pay Service T....
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.... the basis of the averments made in Paragraph 2 of the reply to the show cause notice. It was submitted by the learned Counsel that, the Respondent was SSI Unit and was manufacturing the excisable goods, as stated in Para 2 of its reply. Reliance was also placed on the certificate dated 22nd March, 1990 issued in favour of the respondent by the District Industries Centre, Madhya Pradesh, stating that the respondent was a small scale industrial unit. In that certificate, the Office address of the respondent was different. The reliance placed on the said averment in the reply to the show cause notice and on the Notification dated 6-2-1998, which provided that the Service Tax payable by Small Scale Industry will be kept in abeyance, is wholly misconceived and ignores the respondent's own communication dated 29-9-2004, in Paragraph 3 of which, it was specifically stated as under: "3. In this context, it is submitted that the noticee's company was established under Companies Act, 1956 as Private Limited Company and were/are a solely and exclusively trading company. They, never engaged in any manufacturing activity of any type of goods in the unit at the premises 9-D, Light Industrial A....
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.... submitted that the liability of the respondent to pay Service Tax was firmly established and could not be disputed. He argued that, the show cause notice was issued on 29-11-2002, after the amendments and revalidating provisions were enacted by Sections 116 and 117 of the Finance Act, 2000. Though the show cause notice was issued with reference to the provisions of Section 73 read with Section 70 of the Act, it should be treated as effective even for the purpose of the provisions of Sections 73 and 71A of the Act. He argued that mere mention of a wrong provision in the show cause notice did not invalidate the same. Moreover, the decision of the Tribunal as affirmed by the Hon'ble Supreme Court in L.H. Sugar Factories Ltd. v. Commissioner of Central Excise, Meerut-Il (supra), was not applicable, because the basis of that decision, which was the decision of the Hon'ble Apex Court in Laghu Udyog Bharati v. Union of India (supra), no more survived from 12-5-2000, as held by the Apex Court in Gujarat Ambuja Cements Ltd. v. Union of India reported in 2006 (3) S.T,R. 608 (S.C.) 2005 (182) E.L.T. 33 (S.C.), and by this Tribunal in J.K. industries Ltd. v. CCE, Indore reported in 2006 (3) S....
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.... found that the respondent was a registered dealer, who was not entitled to the benefit of such exemption. 7. It was further contended by the learned Counsel for the respondent that, Section 73 of the said Act would apply to persons who were required to file return under Section 70 and that Section 71A provided that Section 70 will not apply to those covered under the proviso to Section 68(i). He, therefore, submitted that Section 70 was inapplicable in the case of respondent and, therefore, no show cause notice could have been issued with reference to Section 70 of the Act against the respondent. He also submitted that the show cause notice was not revised after 30-11-2003. He finally pointed out from Paragraph 20 of the order of the adjudicating authority that the respondent/noticee had suo motu paid the amount of Service Tax. It appears that relying upon this submission, the adjudicating authority did not impose any penalty under Section 76, 77 or 78 of the Act. 8. The Hon'ble Supreme Court in Gujarat Ambuja Cements Ltd. v. Union of India (supra), has settled the controversy with regard to the liability of the recipient of GTO's. Service for the period in question, in the cont....
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....h half-yearly returns were required to be filed under Rule 7, was rejected on the ground that those provisions of Section 70 and Rule 7 were wholly inapplicable in cases where the provisions of Section 71A applied. 8.1 Under Rule 7A, which was inserted from 14-5-2003, it was provided that notwithstanding anything contained in Rule 7, which related to half-yearly returns, an assessee, in cases of service provided by the goods transporter for the period-in-question, shall furnish a return within a period of six months from 13-5-2003 in Form ST-3B along with a copy of Form TR-6 in triplicate, failing which the interest and penal consequences as provided in the Act were to follow. It is obvious from this provision that even though the liability of the receiver of GTO services remained alive by virtue of the validating provisions for the period-in- question (16-11-1997 to 1-6-1998), the return was required to be filed within the period of six months from 13th May, 2003 in the prescribed form ST-3B and since the time was extended by the Hon'ble Supreme Court, it had to be filed by 30th November, 2003, in view of the directions contained in the decision in Gujarat Ambuja Cements Ltd. v. ....