ORDER
M.V. Ravindran, Member (J)
1. All these stay applications are listed for admission as the amount involved in these cases is less than threshold limit of Rs. 50,000/-. The issue involved in these cases are regarding the payment of Service tax and Section 85 of the Finance Act, 1994 has not prescribed any threshold limit. The issue in all these cases is of Service Tax, hence all the appeals are admitted and stay applications are taken up for disposal.
2. I find that the issue involved in these cases are arising out of the or-der-in-appeal No. 388-421 (HKS)ST/JPR-II/05 dt. 20-7-05 and the very same or-der-in-appeal was under challenge before this Tribunal and vide its order No. 845-851 /06-SM dt. 31-5-06 decided the issue in favour of assessees. Since the issue is covered by the Tribunal’s order, pre-deposit of the amount of Service tax is waived and appeals themselves taken up for disposal.
3. Considered the submissions made at length by both sides and perused the records. I find that the very same issue arising out of the same order-in-appeal was decided by the Tribunal vide its order dt. 31-5-06 wherein the Tribunal held as under:
4. Considered the submissions made by both sides and perused the record. It is not in dispute that the show cause notice has been issued to all the appellants for recovery of service tax under Section 73 of the Finance Act, 1994. The said recovery under Section 73 was adjudicated and demands confirmed relying upon retrospective amendments to Finance Act, 1994. A Div. Bench of this Tribunal in the case of L.H. Sugar Factory – 2006 (3) S.T.R. 230 (Tri.) : 2004 (165) E.L.T. 161 (Tri.) in an identical issue ruled in favour of the assessee. The Revenue aggrieved by the said order challenged it before the Apex Court and the Apex Court in its judgment has held as under:
2. Ld. Counsel for the parties have drawn our notice to the relevant provisions of the Finance Act as it stood in the 4 year 1994 and thereafter as it stood after the various amendments to the Act in subsequent years. Having considered the relevant provisions 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 appellants only under Section 71 A. The class of persons who come under Section 71 A is not brought under the net of Section 73. The above being the position show cause notices issue to the appellants invoking Section 73 are not maintainable.
3. We entirely agree with the conclusion arrived at by the Tribunal. We find no merit in these appeals and the same are accordingly dismissed. No order as to costs.
5. Since the issue is already settled by the Hon’ble Supreme Court all the appeals filed by the appellants are liable to be allowed. Impugned order is set aside and all the appeals are allowed.
4. Accordingly, since the issue involved in these case is already decided by the Tribunal, respectfully following the same, all the appeals are allowed and impugned order is set aside.
(Order dictated in the open Court).