TMI Blog2006 (11) TMI 576X X X X Extracts X X X X X X X X Extracts X X X X ..... s of amended section 73 of the Finance Act, 1994 for recovery of the service tax payable by the appellant as receipt of services from goods transport operator for the period from November 16, 1997 to June 2, 1998. The specific allegations in the show cause notice are as under: Whereas, the amended section 73 [73(1) to be precise] reads as under: Where any service tax has not been levied or paid or has been short-levied or short-paid or erroneously refunded, the Assistant Commissioner or, as the case may be, the Deputy Commissioner of Central Excise may, within one year from the relevant date, serve notice on the person chargeable with the service tax which has not been levied or paid or which has been short-levied or short-paid or th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act, 1994. The appellant resisted the show cause notice on the ground that even the amended provisions of section 73 are not applicable to them. The adjudicating authority confirmed the demand and also imposed penalty, alongwith order for recovery of interest. On an appeal, the Commissioner (Appeals) upheld the demand of duty and interest but set side the penalty imposed on the appellants. The learned Advocate submits that the issue is squarely covered by the decision of the Tribunal in their own case vide order No. 244/06-SM dated November 3, 2006. It is also his submission that the issue is also squarely covered by the decision of the Tribunal in the case of L. H. Sugar Factories Ltd. v. Commissioner of Central Excise, Meerut repor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ply accordingly.' Section 73 has also undergone certain amendments by Finance Act, 2003. After the amendment section 73 reads as follows: '(1) If (a) the Assistant Commissioner of Central Excise or, as the case may be, the Deputy Commissioner of Central Excise has reason to believe that by reason of omission or failure on the part of the assessee, to make a return under section 70 for any prescribed period or to disclose wholly or truly all material facts required for verification of the assessment under section 71, the value of taxable service has escaped assessment or has been under-assessed or service tax has not been paid or has been short paid or any sum has erroneously been refunded, or (b) notwithstanding that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he last date on which such return is to be filed under the said rules; (c) in any other case, the date on which the service tax is to be paid under this Chapter or the rules made thereunder, (ii) in a case where the service tax is provisionally assessed under this Chapter or the rules made thereunder, the date of adjustment of the service tax after the final assessment thereof, (iii) in a case where any sum, relating to service tax has erroneously been refunded, the date of such refund.' The above would show that even the amended section 73 takes in only the case of assessees 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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