2019 (3) TMI 449

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....ent of the service of erstwhile Goods Transport Operators Service during the period from 16.11.1997 to 1.6.1998. A show cause notice dated 30.8.2001 was issued for payment of service tax of Rs. 479,751/- under section 73(a) of the Finance Act, 1994 besides demand of interest and proposal to impose penalties under sections 76 and 77 of the Act ibid. The appellant had filed Writ Petition No. 27077/2003 before the Hon'ble High Court of Madras against the letter dated 16.9.2003 issued by the department informing the appellant to pay up the demand raised in the show cause notice. The main contention taken in such writ petition was that there is no provision to demand tax on service recipient. Later, the said issue as to liability of service reci....

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.... explained when the earlier show cause notice was issued there was no provision for fixing the liability on the service recipient to discharge the service tax. The liability to pay service tax as per statute was on the service provider. Later, the Service Tax Rules brought forth changes to treat the customer of goods transport operator as the person to pay the service tax. Thus it introduced liability for discharging service tax on the service recipient in the case of Goods Transport Operators Service. This was challenged before the Hon'ble Supreme Court wherein the said Rule was held ultra vires. Thus the first show cause notice issued in 2001 is against law and therefore cannot sustain. It is the appellant's case that first show cause not....

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....s already been issued. It is also submitted by her that various High Courts including the jurisdictional High Court has held that show cause notice issued in this regard outside the period between 10.9.2004 and 13.11.2004 were invalid. She relied upon the decision of the Hon'ble Madras High Court in the case of PSL Ltd. in CMA No. 2637 of 2017 dated 23.10.2017. 4. The ld. AR Jagan Babu appeared and argued on behalf of the department. He submitted that Finance Act, 2000 brought out retrospective amendments and Finance Act, 2003 brought in further retrospective amendment in order to validate the recovery of service tax. Even though during the issuance of first show cause notice, there was no provision in the statute for demand of service t....

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....ed after the amendment in 2003 / 2004. It did not discuss a situation in which a fresh show cause notice is issued, where already show cause notice is pending. On perusal of the adjudication order, we do take note of the fact that the adjudicating authority has started the order by stating that the proceedings arise out of show cause notice dated 30.8.2001. However, in the operative portion, it is stated by him that this show cause notice stands abated and treated as withdrawn due to issuance of the show cause notice dated 27.10.2004. 7. For easy discussion, the statutory / legal developments in this regard as summarized in the case of Agauta Sugar & Chemicals (supra) is reproduced as under:- "5. For a better understanding of the issu....

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....goods transport operator as responsible for collecting the Service tax was ultra vires the Act. It was held that Section 68(1A) did not make the customer the assessee and Section 70 providing for filing of return was not applicable in the customer's case. 2000 (i) By Section 16 of the Finance Act, 2000, the provisions of the Act were amended to provide for levy of service tax on goods transport service for the period July, 16, 1997 to August 1, 1998. The definitions of "assessee" and "taxable service" and the charging and valuation Sections 66 and 67 were amended and definitions of "goods carriage" and "goods transport operator" were inserted. (ii) Section 117 of the Finance Act, 2000 validated Rule 2(1)(d)(xvii) and previous actio....

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.....R. 608 (S.C.) = 2005 (182) E.L.T. 33 (S.C)." 8. Be that as it may, the main contention put forward by the ld. counsel for appellant is on the ground of limitation. She submitted that the earlier show cause notice dated 30.8.2001 was issued for the period 16.11.1997 to 1.6.1998 alleging suppression of facts and invoking the extended period of limitation. It has to be noted that when the earlier show cause notice was issued, there was no liability cast upon the service recipient to discharge service tax under Goods Transport Operators Service. The said issued travelled upto the Apex Court and in the decision of Laghu Udyog Bharati (supra), the Apex Court had held that recovery could not be made from the service recipient unless there is a....