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2021 (10) TMI 302 - AT - Service TaxValidity of SCN - demand of service tax on GTO/GTA services received by the appellant - reverse charge mechanism - Section 73 of FA - refund of service tax paid under protest which have been demanded vide the SCN pending adjudication - HELD THAT:- The issue of levy of service tax on GTO service, on the receiver of service under reverse charge mechanism was held ultra virus by the Hon’ble Supreme Court in the case of L. H. Sugar [2005 (7) TMI 106 - SC ORDER]. It was categorically held that ‘person’ required to file return under Section 71A of the Act was not covered under Section 73, as it stood on the date of issuance of the show cause notice. It is admitted fact that the appellant have taken service tax registration and are filing the periodical returns regularly. The appellant have maintained proper books of accounts in the normal course of business. Hon’ble Supreme Court in case of Laghu Udyog Bharati [1999 (7) TMI 1 - SUPREME COURT], have held the provision of levy under reverse charge basis, as per Rule 2(1)(d) of the Service Tax Rules in the case of GTO service, as ultra virus the Finance Act, 1994. Accordingly, in these facts and circumstances and in view of the law pronounced by the Apex Court, it is held that the extended period of limitation cannot be invoked, as admittedly the show cause notice have been issued after the normal period of limitation. Further, whole proceedings and the show cause notice is ab initio void in view of the ruling of the Hon’ble Supreme Court. The revenue is directed to grant refund of the amount of ₹ 43,89,613/- to the appellant (paid under protest) with interest @ 12% per annum for the period from 08.11.2003 till the date of payment, within a period of sixty days from the date of receipt/ service of the copy of the order - appeal allowed - decided in favor of appellant.
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