ORDER
P.G. Chacko, Member (J)
1. This application filed by the appellants is for early disposal of their appeal. After hearing both sides, we are inclined to dispose of the appeal finally at this stage. Accordingly, after allowing the application, we proceed to deal with the appeal.
2. The appellants had received the service of Goods Transport Operator during 16.11.1997 to 1.6.1998, but they had not paid service tax on such service. In a show-cause notice dated 29.9.04, the Department demanded service tax on the above service and also proposed to impose penalties on the party. The demand was contested. In adjudication of the dispute, the original authority confirmed the demand of tax under Section 73 of the Finance Act, 1994 demanded interest thereon under Section 75 of the Act and imposed penalties under Sections 76 and 77 of the Act. The appeal filed by the party did not succeed. Hence the present appeal filed against the order of the Commissioner (Appeals).
3. After considering the submissions made by both sides, we note that the issue is already covered in favour of the appellants by decisions of this Bench, one of which has been cited by ld. Counsel, which is Final Order No. 1076 to 1088/06 dated 14.11.06 in appeal No. S/14/06/MAS etc. The essential part of the said final order is reproduced below:
2. The respondents had received the service of “Goods Transport Operators” during 16.11.1997 to 1.6.1998. They were not liable to pay service tax on GTO service during the said period by virtue of the Supreme Court’s judgment in Lalghu Udyog Bharati and Ors. v. UOI , which quashed that provision of Service Tax Rules, 1994 which made recipients of GTO service (who had received such service during the above period) liable to pay service tax for the said period. The relevant provisions of the Finance Act, 1994 were amended by the Finance Act, 2000 with effect from 16.11.1997 to 1.6.1998. The Finance Act, 2000 came into force on 12.5.2000. These provisions were considered by the lower appellate authorities and it was held that the respondents were not liable to pay service tax on the GTO service received by them during 16.11.1997 to 1.6.1998 as the demand of tax was raised beyond the time limit prescribed under Section 73 of the Finance Act, 1994 as amended. The ld. appellate Commissioners relied on the Tribunal’s judgment in L.H. Sugar Factories Ltd. v. CCE, Meerut-II , wherein it had been held that a person receiving taxable service from GTO was not covered by the provisions of Section 70 and 73 of the Finance Act, 1994 and that any demand notice issued to such a person by the Department under Section 73 was not maintainable. The Tribunal had also held that the above legal position did not get altered even after amendment of the Finance Act, 1994 by the Finance Act, 2003. The Tribunal’s decision was upheld by the Supreme Court vide 2005 (187) ELT 5 (SC) on 27.7.2005. The view taken in the case of L.H. Sugar Factories (supra) was followed in the impugned orders by the lower appellate authorities.
3. In these appeals, the appellants submit that, after the decision of the apex Court in the case of L.H. Sugar Factories Ltd. (supra), the Hon’ble Court has admitted Civil Appeal No. 1618/2005 filed by the Commissioner of Central Excise, Vadodara in the case of Gujarat Carbon and Industries and another Civil Appeal by the Commissioner of Central Excise, Chennai-III in the case of Sundaram Fastners Ltd. It is submitted that, in the said Civil Appeals, the Department’s stand is contrary to the view taken by the apex Court in the case of L.H. Sugar Factories Ltd. (supra). The appellants before us have not claimed that the apex Court stayed the operation of the Tribunal’s orders in the case of Gujarat Carbon and Industries (supra) and Sundaram Fastners Ltd. (supra). The mere admission of Civil Appeals by the apex Court would not operate as stay against the decision taken by the Tribunal. At present, the decision in L.H. Sugar Factories case is holding the field and therefore the impugned orders passed by the appellate Commissioners in terms of the said decision can only be sustained.
4. In the result, the impugned orders are sustained and all these appeals are dismissed.
4. Following the above, we set aside the impugned order and allow this appeal.
(Dictated and pronounced in open court)