ORDER
C.N.B. Nair, Member (T)
1. Heard both sides and perused the record.
2. The issue that arises for consideration in these appeals is whether the revenue could issue show-cause notice under Section 73 of the Finance Act, 1994 for the recovery of Service Tax not paid during the period 16.11.97 to 1.6.98 in respect of goods transport service.
3. The contention of the ld. Counsel for the appellants is that this issue had directly arisen before this Tribunal in the case of L.H. Sugar Factories Ltd. v. Commissioner of Central Excise, Meerut and the Tribunal held that such recovery is not permissible even in terms of the amendments to Section 73 under Finance Act 2003. It is also being pointed out that this decision was taken up by the Revenue in appeal before the Hon’ble Supreme Court and the Supreme Court was pleased to dismiss the appeal. The contention of the ld. Counsel is that the issue is no more open in view of the judgment of the Hon’ble Supreme Court.
4. The ld. SDR would point out that the amendments under Finance Act 2000 and 2003 were the subject matter of the judgment of the Hon’ble Supreme Court in the case of Gujarat Ambuja Cements Ltd. v. Union of India . He would also point out that in the light of this judgment of the Hon’ble Supreme Court on the effect of curative retrospective amendments, the Tribunal had taken a view in the case of J.K. Industries Ltd. v. CCE, Indore 2006 (3) STR 14 (Tri.-Del.) that the finding of the Tribunal in the L.H. Sugar case is mis-conceived. To this, the reply of the ld. Counsel for the appellant is that the decision in the J.K. Industries case has been rendered by the Tribunal without noticing the judgment of the Supreme Court in the case of L.H. Sugar Industries.
5. We find that the Hon’ble Supreme Court had considered the effect of the amended legal position; in the appeal filed by the Revenue against the judgment of this Tribunal in the case of L.H. Sugar Ltd. and had ruled as under:
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 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 assesses who are liable to file return under Section 70. Admittedly, the liability to file return is cast on the appellants only under Section 71A. The class of persons who come under Section 71A is not brought under the net of Section 73. The above being the position show cause notices issued 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.
6. A Perusal of the above judgment brings out that a notice under Section 73 could not have been resorted to by the Revenue for the purpose of recovery of tax not paid during the material period. This decision is directly on the dispute arising in these appeals and has to be followed by all the subordinate courts and tribunals.
7. In the result, the present appeals are allowed with consequential relief, if any, to the appellants.
(Dictated & pronounced in open Court)