TaxTMI 
TaxTMI 
TaxTMI 
2009 (2) TMI 44
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....s the extract of the orders passed by the Commissioner (Appeals). "The matter is no more res integra. The judgement of CESTAT in L.H.Sugar Factories Ltd. Vs. Other 2004 (165) ELT 161(Tri.-Del) holding that even in amended provisions of Service Tax in case of Goods Transport Operators Services, the service receiver is not liable to pay Service Tax up to the period 01.06.1998, is upheld by the apex court in Civil appeal No.4426-4431 of 2004 in their judgement dated 27.07.2005, 2005 (187) ELT 5 (SC). The operative portion of the judgement is reproduced below:- 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 provision 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 appellant only under Section 71A. The class of persons who ....
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....lidating Acts were upheld by Hon'ble Supreme Court in Gujarat Ambuja Cements Ltd. vs. Union of India reported in 2005 (182) ELT 33 (SC) and, therefore, the protest under which the tax was paid under self-assessment did not survive. The learned JDR also submitted that in the instant case, neither the show cause notice was issued under Section 73 nor the said Section was invoked in the letter dated 29.03.2004 issued by the Assistant Commissioner of Central Excise, Chandrapur Division. He also relied upon the decision of the Tribunal in the case of J.K. Industries Ltd. Vs. Commissioner of Central Excise, Indore reported in 2006 (03) STR 14 (Tri.-Del) for the proposition that the service tax paid on the basis of self-assessment as per statutory provisions was a valid collection of tax by Government and not refundable to BIL, who are liable to pay the same under the amended provisions of Section 71A of the Finance Act, 1994 as inserted by the Finance Act, 2003. He also referred to the Tribunal's decision in the case of Commissioner of Central Excise, Jaipur Vs. Mangalam Cement Ltd. reported in 2007 (7) STR 673 (Tri.-Delhi) which has affirmed the Tribunal's decision in the case of J.K. I....
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....97) as ultra vires of the Act. The Supreme Court in Gujarat Ambuja Cements Ltd. (Supra) held that a legislature was competent to remove infirmities retrospectively and make imposition of tax declared invalid, valid. It was held that the law must be taken as having always been as was now brought about by the Finance Act, 2000 and that the statutory foundation for the decision in Laghu Udyog Bharti was replaced and the decision has thereby ceased to be relevant for the purpose of construing the present provisions. 8. At the outset, it is to be noted that it is very clear that the obligation to pay tax arising under the amended provision on the part of BIL, who were the recipient of services in question, was never extinguished. It is seen that no demand was made by issuing any show cause notice to BIL. Therefore, the question of applicability of Section 73 does not arise and the decision of the Tribunal in the case of L.H. Sugar Factories Ltd. [2004 (165) ELT 161 (T)] as upheld by the Supreme Court [2005 (187) ELT 5 (SC)] and which has been relied upon by the Commissioner (Appeals) in the impugned order, is not applicable to the facts of the present case. The letter dated 29.03.2004 ....
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....ppellant under Section 71A on the basis of the self-assessment could have been verified under Section 71 by the concerned officer in view of the specific provision made in Section 71A to the effect that Section 71 shall apply to such return. However, even when it was not taken up for verification, it cannot be said that the service tax paid on the basis of self-assessment was not tax assessed. Since the service tax was validly paid under the liability arising under the amended provisions, particularly under Section 71A requiring the appellant to file such return, the appellants are not entitled to the refund. There was no question of issuance of any show cause notice under Section 73 for recovery, because, the appellants had paid the tax on self assessment basis under the return filed under Section 71A of the Act read with Rule 7A of the Act. None of the contentions raised on behalf of the appellant has therefore any substance". 9. The Hon'ble Supreme Court in its Judgement in the case of Gujarat Ambuja Cements Ltd. (Supra) in para 19 has observed as under:- "In addition, Section 71 which provides for the filing of returns was amended to provide, with retrospective effect, for th....
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....atter involves public interest. It further observed that if regardless of the Revenue's legitimate claim arising out of strict interpretation of exemption notification, the present appeals are allowed solely on the ground that an order in favour of the assessee on similar set of facts exists and Revenue has not filed appeal against it, the public exchequer will be deprived of substantial revenue. It was held that the appeals are to be disposed of on merits. 12. The Commissioner (Appeals), while allowing the appeals filed by BIL, has relied upon the decision of the Tribunal in the case of L.H. Sugar Factories Ltd. [2004 (165) ELT 161 (Tri.-Del.)] as upheld by the Supreme Court [2005 (187) ELT 5 (SC)]. In this regard, I deem it necessary to reproduce below the relevant paras of the Tribunal's orders in the case of Commissioner of Central excise Jaipur Vs. Mangalam Cement Ltd. [2007 (7) STR 673 (Tri.-Del)], which are relevant and pertinent to the case. "13. The reliance of the respondents-assessees on the ratio of the decision in L.H. Sugar Factory (Supra), which is affirmed by Hon'ble the Supreme court by its order reported in 2006 (3) S.T.R. 715 (S.C.)- 2005 (187) E.L.T. 5 (S.C.) ....
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....tio of the decision of the Apex Court in Gujarat Ambuja Cement Ltd., (supra), in which it was categorically held, in the context of the said provisions, that the law must be taken as having always been as is now brought about by the Finance Act, 2000, and that the statutory foundation for the decision in Laghu Udyog Bharati (which was followed in L.H. Sugar Factories Ltd. by the Tribunal) had been replaced and the decision has thereby ceased to be relevant for the purposes of construing the amended provisions. 16. In view of the clear ratio of the decision of the Hon'ble Supreme Court in Gujarat Ambuja Cement Ltd. (supra), which was followed by this Tribunal in J.K. Industries ltd. (supra), any contrary decisions simply giving directions without dealing with or showing dissent from the ratio laid down in these decisions or attempting to distinguish them, cannot be considered to be laying down any precedent on the doctrine of ratio decidendi. Mere directions, issued contrary to the settled legal position, cannot be said to be laying down any contrary ratio, so as to constitute an opposite precedent or laying down a contrary proposition. We are of the opinion that the ratio of the d....