TaxTMI 
TaxTMI 
2021 (10) TMI 302
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....ssue involved is- (i) whether show cause notice dated 28.09.2001 has been validly issued, for raising demand of service tax on GTO/GTA services received by the appellant for the disputed period, in terms of the prevailing Section 73 under reverse charge, and (ii) Whether the appellant is entitled to refund of the amount of service tax Rs. 43,89,613/-, paid under protest which have been demanded vide aforementioned show cause notice dated 28.09.2001, pending adjudication. 3. Brief facts and the chequered history in these appeals is as under:- Dates Events 16.11.1997 to 01.06.1998 The appellant availed services of goods transport operator services. 28.09.2001 A show cause notice dated 28.09.2021 was issu....
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....tors responsible for collecting service tax, is ultra vires the Finance Act, 1994. 12.05.2000 Introduction of levy of service tax on Goods transport operators, under 'Reverse charge mechanism', vide Section 116 and 117 of the Finance Act, 2000 enacted on 12.05.2000, revalidating and amending the provisions of Finance Act, 1994 for the period 16.07.1997 to 16.10.1998 (retrospectively). 27.07.2005 The Hon'ble Supreme Court in the case of CCE, Meerut vs. LH Sugar Factories Ltd. 2006 (3) STR 715 (SC) held that - person required to file return under Section 71A of the Act was not covered by Section 73 of the Act, as it stood on the date of issuance of the show cause notice. 14.05.2003 Retrospective amendment to Section 68 of th....
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....ar of relevant date, prescribed under Section 73 of the Finance Act came up before the Hon'ble Gujarat High Court in Emco Elecon Ltd., -2010 (20) STR 603 and the issue was decided against the Department. Further observed that Hon'ble Madras High Court in the case of L&T & Others reported in 2010 (35) STR 32 (Mad.) has upheld the validity to revise show cause notice vide corrigenda issued after 10.09.2004, within a period of one year from the relevant date. 6. Accordingly, learned Commissioner (Appeals) has held that the show cause notice dated 28.09.2001 read with the corrigenda dated 03.11.2004, has been validly issued within the period of one year from 10.11.2003. As such the show cause notice is not hit by limitation. 7. The other ....
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....appeal of Agauta Sugar Chemical - 2012 11 TMI 740, after taking note of the judicial development have decided similar issue in favour of the assessee and against the Revenue. 12. It is further urged by the appellant that corrigenda were issued to the original show cause notice. Thus when the notice itself is invalid or not tenable, the subsequent corrigenda cannot give it a fresh lease of life. Further extended period of limitation is not invokable in the facts and circumstances, there being no contumacious conduct on the part of the appellant, or mis-statement or fraud, which are the condition precedent for invocation of extended period of limitation. Accordingly, he prayed for allowing both the appeals with consequential benefits. 1....
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.... his agent for transportation by road in a goods carrier." 14. I take notice that Hon'ble Bombay High Court in the case of Indian National Shipowners Association have held that service tax cannot be levied under reverse charge mechanism prior to 18.04.2006, when Section 66A was introduced and/or inserted in the Finance Act, providing for levy of service tax from the receiver of service, under reverse charge mechanism. This ruling have been confirmed by Hon'ble Supreme Court. 15. I further take notice that in para 11 of the show cause notice it is observed that Hon'ble Supreme Court in case of Laghu Udyog Bharati by its judgment dated 27.07.1999, have held the provision of levy under reverse charge basis, as per Rule 2(1)(d) of the Ser....