RECOVERY
CESTAT,
Ahmedabad Bench
Commissioner
of Central Excise,
v.
Gujarat
Borisil Ltd.
M.
Veeraiyan, Technical Member
Order
No. A/3127/WZB/AHD/07
ST
Appeal No. 101 of 2007
December
11, 2007
Section 73 of
the Finance Act, 1994 – Recovery of service tax not levied or paid or short
levied or short paid or erroneously refunded – Period from 16-11-1997 to
1-6-1998 – Revenue by issue of a show-cause notice dated 23-7-2004 demanded
service tax from assessee recipient of Goods Transport Operator’s (GTO’s)
services under section 73 for relevant
period - Original authority can firmed
demand alongwith penalty and interest - However Commissioner (Appeals) set
aside demand on ground that therewas no provision under section 73 to demand
service tax from assessee who are liable to file return under section 71 who
had failed to pay tax by due date– Supreme Court in CCE v. L.H. Sugar
Factories Ltd. (2005) 2 STT 282 has
held that amended section 73 takes in only case of assessees who are liable to
file return under section 70 and class
of persons who would come under section 71A like instant assessee was not
brought under net of section 73 and show cause notice issued invoking section
assessee was not maintainable – Whether in view of above case– Held, yes [Para
8]
The assessee received goods transport operator’s (GTO’s services during the period 16-11-1997 to 1-6-1998. The revenue by issuing a show-cause notice dated 23-7-2004 to the assessee demanded service tax under section 73(1)(a). The original authority confirmed the demand along with interest under section 75 and imposed penalty. On appeal, the Commissioner (Appeals) set aside the demand on the ground that there was no provision under section 73 to demand service tax from the assessees who were liable to file return under section 71(1) and who had failed to pay tax by the due date.
On revenue’s appeal:
The Apex Court
in CCE v. L.H. Sugar Factories Ltd. (2005) 2 STT 282 the amended section 73 takes in only the case
of assessees who are liable to file return under section 70 and the class of
persons who would come under section 71A is not brought under the net of
section 73 and show cause notice issued to such assesses invoking section 73
was not maintainable The class of persons who would come under section 71A is
not brought under the net of section 73. Tamil Nadu cements Corporation Ltd.
v. CCE (2007) 8 STT 492 (Chennai) held that under the Finance Act, 2003, section 71A was inserted in the which
cast a liability on recipients of GTO service to file returns and the amendment
brought to the Act or the Rules framed thereunder did not have the effect of
bringing such assessee within the fold of section 73 as per the ruling of the
Apex Court in L.H. Sugar Factories (supra). The facts of the instant
case were akin to the case of L.H. Sugar Factories Ltd. case (supra)
and Tamil Nadu Cement Corpn. Ltd.(supra) [
In view of
above, the appeal was to be rejected. [
Case Review
CCE v. L.H. Sugar Factores Ltd. 2005 (187) ELT 5 (SC) and Tamil Nadu Cements Corporation Ltd. v. CCE 2007 – TIOL-817 – Followed.