TaxTMI 
TaxTMI 
2017 (11) TMI 653
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....ures of pipes, had utilised the service of Goods Transport Operators, during the period from 16.11.1997 to 01.06.1998 and failed to pay service tax thereon. The department has issued a show cause notice on 03.06.2002, by invoking the extended period of limitation, under Section 73 of the Finance Act, 1994, demanding tax with interest, and proposed to impose penalty for the delay in payment. The 2nd respondent-assessee resisted the demand of tax, on merits, as well as on the ground of limitation. Accepting the contentions of the assessee, the adjudicating authority has dropped further proceedings, vide Order-in-Original, dated 06.07.2004. However, the Revisional Authority, Commissioner of Central Excise, Puducherry, proposed to hold that the....
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....nd the learned Jt. CDR for the Revenue, I find that the view taken by this Tribunal in L.H.Sugar Factories case vide 2004 (165) ELT 161 (Tribunal) on service tax liability on recipients of GTO service for the aforesaid period was affirmed by the apex Court vide Commissioner v. L.H.Sugar Factories Ltd., - 2006 (3) STR 715 (SC). The retrospective amendments brought to the relevant provisions of the Finance Act, 1994 by the Finance Act, 2000 and the Finance Act, 2003 were considered in L.H.Sugar Factories case and it was held that, as the class of persons coming under Section 71A of the Finance Act, 1994 was not brought under Section 73 of the said Act, service tax was not recoverable under Section 73 from a recipient of GTO service for the af....
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....und that, after the said decision of the apex Court, certain civil appeals filed by the Department on identical issue were admitted by the apex Court. Therefore, the order of the lower appellate authority to grant of the consequential relief of refund to the assessee is sustained and the revenue's appeal is dismissed." 5. Being aggrieved by the said order of the CESTAT, Chennai, the present appeal has been filed, on the following substantial questions of law, (i) Whether the first respondent is justified in observing that service tax was not recoverable under Section 73 of the Finance Act, 1994 from a recipient of GTO service for the aforesaid period inasmuch as the show cause notice issued for the category of persons mentioned under....
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.... proviso to Sub Section 1 of Section 68(1) of the Finance Act, 1994?; (b) Whether the Tribunal is correct in holding a different view that a demand under Section 73 cannot be raised against a person covered by Section 71A, whereas terms of provisions contained in Finance Act 2003, the said tax is recoverable from service availer and that the provisions of Section 73 do apply to such cases?" 7. The above substantial questions of law, were answered in negative, as against the revenue. While setting aside the adjudication order, a Hon'ble Division Bench of this Court, vide order, dated 24.10.2013, held as follows: "6. We have heard the learned Standing counsel appearing for the Department and the learned counsel appearing for the re....
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.... and 09.04.2004 and in C.M.A.No.1066/2010, it was issued on 03.06.2002. Out of the above said Civil Miscellaneous Appeal cases, the Department accepted the legal position and dropped the demand in respect of C.M.A.No.3558 of 2009 and C.M.A.1066 of 2010. 10. In the light of the above legal position, the very initiation of proceedings by issuance of show cause notice is bad in law. Accordingly, the order passed by the Customs, Excise and Service Tax Appellate Tribunal is justified. There is no ground to interfere with the order. Accordingly, the Civil Miscellaneous Appeals filed by the Department fails and the same are dismissed." 8. In the instant Civil Miscellaneous Appeal, the Commissioner of Central Excise, Puducherry Commissionerate,....