ORDER
C.N.B. Nair, Member (T)
1. Heard both sides and perused the record.
2. The Service tax demand is for the period 1997-98. The submission of the learned Counsel for the appellant is that delayed demands issued in 2004 are not sustainable in the light of the decision of this Tribunal in the case of BPL Engineering Ltd. v. CST, Bangalore 2006 (3) S.T.R. 747 (Tri-Bang).
3. The learned SDR contends that, in the light of judgment of the Hon’ble Supreme Court in the case of Gujarat Ambuja Cements Ltd. v. Union of India 2006 (3) S.T.R. 608 (S.C.) : 2005 (182) E.L.T. 33 (S.C.), recoveries of Service Tax relating to 1997-98 are assessable by issue of show cause notice in 2004.
4. A perusal of the Tribunal’s judgment in the case of BPL Engineering (supra) makes it clear that the demand issued in 2004 is not sustainable. We may read Para 2 of the judgment:
2. Revenue proceeded to recover Service Tax of Rs. 27,782/- and penalty of Rs. 1000/- for every day during failure to pay service tax under Section 76 of Finance Act, 1994, on the ground that the appellants were receiving the services of Goods Transport Operators (GTO) during the period 16-11-1997 to 1-6-1998. During the relevant period, the said services were not covered for levy of service tax. Latter by retrospective amendment, these services were held to be taxable. However, the show cause notice had been issued only after the amendment in 2004. Therefore, on that ground appellants submit that Service Tax cannot be confirmed as held by Apex Court in the case cited supra. It has been held that the demands could be confirmed only if the show cause notice had been issued prior to the amendment to the Finance Act covering the said services.
4. We do not find any specific ruling in the judgment of the Hon’ble Supreme Court in the case of Gujarat Ambuja Cement Ltd. (supra) that show cause notice issued in 2004 would be valid for the recovery of demands for 1997-98.
5. In view of the above position, the stay application is allowed and recovery stayed till disposal of the appeal.
6. Registry to list this case on 26-3-07 for final hearing.
(Pronounced in the open Court)