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Section 73 can’t be invoked for demand of Service Tax on receiver of G.T.O services

Issue

The issue involved in the present appeal is demand  ofService Tax on Goods Transport Operator service received by them during the period from 16.11.1997 to 01.06.1998, in terms of the amendment introduced vide Section 158 of the Finance Act, 2003

Legality 

Finance Act, 2003 introduced a Proviso under sub-section (1) of Section 68 of the Finance Act, 1994 the liability to pay Service Tax was on the person providing taxable service, and not on the recipient. Simultaneously Section 71A came to be introduced by the Finance Act, 2003 casting the liability on the service recipient to file a return within six months from the date on which the Finance Bill, 2003 receives assent of the President. However, even after this amendment, the Apex Court has noted that in absence of Section 71A of the Finance Act, 1994 (which has retrospectively been introduced w.e.f. 16-7-1997) appearing in Section 73 of the Finance Act, 1994 no levy of any short duty or non-levy could have been demande

The tax litigation of M/s Apar Industries Ltd was handled by Shri Anand Mishra, Advocate, Amlegals .

Held  :

Till the point of time Section 73 of the Finance Act, 1994 came to be substituted w.e.f. 10-9-2004 provisions of the said section could not be made applicable despite retrospective amendment in Sections 68 and 71A of the Finance Act, 1994. In these circumstances, admittedly, the assessee could not be faulted with for not having filed a return after getting himself registered. More particularly, when one considers the language employed in the Proviso below sub-section (1) of Section 68 and the provisions of Section 71A of the Finance Act, 1994, it is not possible to state that the language of the Statute is so clear that any default can be fastened on the respondent-assessee

The entire order is reproduced herein below :


In The Customs, Excise & Service Tax Appellate Tribunal West Zonal Bench at Ahmedabad
Appeal No.ST/132/2008
[Arising out of OIA No.Commr.(A)/60/VDR-I/2008, dt.14.05.2008, passed by Commissioner (Appeals), Central Excise & Service Tax, Vadodara]

M/s Apar Industries Ltd     ..............................Appellant

Vs

Commissioner, Central Excise & Service Tax,
Vadodara-I                       ...............................Respondent

Represented by:
For Appellant: Shri Anand Mishra, Advocate
For Respondent: Shri Jitendra Nair, Authorised Representative

For approval and signature:
Honble Mr. P.K. Das, Member (Judicial)
Honble Mr. P.M. Saleem, Member (Technical)

1. Whether Press Reporters may be allowed to see the No
Order for publication as per Rule 27 of the CESTAT
(Procedure) Rules, 1982?

2. Whether it should be released under Rule 27 of the No
CESTAT (Procedure) Rules, 1982 for publication
in any authoritative report or not?

3. Whether their Lordships wish to see the fair copy of Seen
the order?

4. Whether order is to be circulated to the Departmental Yes
authorities?
CORAM:
HONBLE MR. P.K. DAS, MEMBER (JUDICIAL)
HONBLE MR. P.M. SALEEM, MEMBER (TECHNICAL)
Date of Hearing/Decision: 14.09.2015

Order No. A/11323/2015, dt.14.09.2015

Per: P.K. Das

Heard both the sides and perused the records.

2. The Appellants were engaged in manufacture of various grades of Aluminum Conductors classifiable under Chapter 76 of the Schedule to the Central Excise Tariff Act, 1985. A show cause notice dt.18.08.2005, was issued to demand Service Tax on Goods Transport Operator service received by them during the period from 16.11.1997 to 01.06.1998, in terms of the amendment introduced vide Section 158 of the Finance Act, 2003.

3. We find that the issue is no more res integra in view of the decision of Hon'ble Gujarat High Court in the case of Commissioner of Central Excise, Vadodara Vs Eimco Elecon Ltd  2010 (20) STR 603 (Guj). In that case, a show cause notice dt.11.11.2004 was issued, demanding Service Tax for the period from 16.07.1997 to 02.06.1998 of Goods Transport Operator service as per the amendment of the Finance Act, 2003. The Tribunal set aside the demand, which was upheld by Hon'ble High Court. The relevant portion of the said decision is reproduced below:-

3.It is not in dispute that till Finance Act, 2003 introduced a Proviso under sub-section (1) of Section 68 of the Finance Act, 1994 the liability to pay Service Tax was on the person providing taxable service, and not on the recipient. Simultaneously Section 71A came to be introduced by the Finance Act, 2003 casting the liability on the service recipient to file a return within six months from the date on which the Finance Bill, 2003 receives assent of the President. However, even after this amendment, the Apex Court has noted that in absence of Section 71A of the Finance Act, 1994 (which has retrospectively been introduced w.e.f. 16-7-1997) appearing in Section 73 of the Finance Act, 1994 no levy of any short duty or non-levy could have been demanded.

4.Thus, it is apparent that till the point of time Section 73 of the Finance Act, 1994 came to be substituted w.e.f. 10-9-2004 provisions of the said section could not be made applicable despite retrospective amendment in Sections 68 and 71A of the Finance Act, 1994. In these circumstances, admittedly, the assessee could not be faulted with for not having filed a return after getting himself registered. More particularly, when one considers the language employed in the Proviso below sub-section (1) of Section 68 and the provisions of Section 71A of the Finance Act, 1994, it is not possible to state that the language of the Statute is so clear that any default can be fastened on the respondent-assessee.

5.In the circumstances, in absence of any infirmity in the impugned order of the Tribunal, the impugned order of Tribunal does not merit interference. No substantial question of law can be said to arise out of the impugned order of the Tribunal. The appeal is accordingly dismissed.
4. In view of the above, we set aside the impugned order. The appeal filed by the Appellant is allowed.

(Dictated & Pronounced in Court)

(P.M. Saleem)                                                                   ( P.K. Das)
Member (Technical)                                                          Member (Judicial)


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by Anand Mishra, Founder Advocate, AMLEGALS

( The author is a leading advocate and handling cases in Tribunals & High Courts of India . He can be contacted on anand@amlegals.com .For more please refer www.amlegals.com )

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