TMI Blog2013 (5) TMI 57X X X X Extracts X X X X X X X X Extracts X X X X ..... aid section could not be made applicable despite retrospective amendment in Sections 68 and 71A of the Finance Act, 1994. In these circumstances, admittedly, the 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. Thus following the decisions of the High Courts as cited above and hold that the demands issued after in 2004 or later in respect of the short levies in dispute in the three cases f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e tax. 4. The major decision to the effect that Rule 2(d)(xvii) was ultra vires in the case of Laghu Udyog Bharati reported at 1999 (112) E.L.T. 365 (S.C.) = 2006 (2) S.T.R. 276 (S.C.) During the said period there were some service receivers who had paid service tax and there were some others who did not file any return or pay service tax. The assessees involved in the present cases are of the latter category. 5. To overcome the defect pointed out by the Apex Court in the case of Laghu Udyog Bharati (supra), the Parliament made retrospective amendment by Section 117 of the Finance Act, 2000. This amendment validated the action taken under the said rule notwithstanding any judgment, decree or order of any court. Tribunal or any authority ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aped assessment or has been under-assessed, or any sum has erroneously been refunded, he may, in cases falling under Clause (a), at any time within five years, and in cases falling under Clause (b), at any time within six months from the date for filing the return, serve on the assessee a notice and proceed to assess or reassess the value of the taxable service. Explanation - Where the service of the notice is stayed by an order of a court, the period of such stay shall be excluded in computing the aforesaid period of five years or six months, as the case may be. 7. In the meanwhile legislature amended Finance Act, 1994 again by Finance Act, 2003 to insert a clause 71A retrospectively for the period 16th day of July, 1997 and ending ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2004, Section 73 was made applicable without reference to any specific section under which return was to be filed as was the case earlier. So the issue had to be decided with reference to the relevant date as defined in sub-section (6) of Section 73 as reproduced above. 10. Because there were conflicting decisions of the co-ordinate Benches on the issue whether recovery provisions would apply to the impugned short levies for which Show Cause Notices were issued after 10-9-2004 the matter was refereed to Larger Bench of the Tribunal in Appeal Nos. ST/32, 88/2007 and 532/2006 as reported at 2007 (8) S.T.R. 496 (Tri.-Del.). In this decision the Larger Bench of Tribunal held that the Show Cause Notices issued in the matter after amendment of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that till the point of time Section 73 of the Finance Act, 1994 came to be substituted w.e.f. 10-9-2004 provisions of the said section could not be made applicable despite retrospective amendment in Sections 68 and 71A of the Finance Act, 1994. In these circumstances, admittedly, the 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-assessees. 13. We are of the view that when an issue is decided by t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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