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2012 (11) TMI 740 - AT - Service TaxFailure to file Return of Income - Recovery of service tax on GTA services prior to 2004 after validating the provisions post Laghu Udyog Bharati case (1999 (7) TMI 1 - SUPREME COURT OF INDIA) - Held that:- 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. further, as the matter has been decided by two High Courts in favour of assessees which are directly opposite to the decision given by the Larger Bench and since the Larger Bench has not considered the above decisions of the High Courts, the final order should be passed based on the decisions of the High Courts and not based on the decision of the Larger Bench of Tribunal - demands issued after 2004 or later in respect of the short levies in dispute in case filed by assessees are not maintainable - Consequently, appeals filed by the assessees are allowed. In this case Notice was issued after retrospective amendments made by Finance Act, 2001 but before the retrospective amendments by Finance Act, 2003 and Finance Act, 2004. But the question whether such notices issued after amendment made by Finance Act, 2001 was valid for recovery of taxes short paid during 16-11-97 to 02-06-98 was the issue before the Tribunal in the case of L.H. Sugar Factories Ltd (2004 (1) TMI 111 - CESTAT, NEW DELHI) and the Tribunal answered the question in the negative and the decision has been affirmed by the Hon. Apex Court. Further after amendment made by Finance Act 2004, Revenue issued a corrigendum to the notice dated 01-11-04 quoting the amendments made in Finance Act, 2004. This has to be essentially understood as a notice issued on 01-11-04 when the corrigendum was issued. The ratio of the decisions of the High Courts quoted in para 13 above is to the effect such notices issued in 2004 also cannot be enforced. Therefore in this case also the decision goes in favour of the assessee. So this appeal filed by Revenue is rejected.
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