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CCE & ST, Trichy Versus M/s. Dalmia Cements (B) Ltd.

2015 (6) TMI 83 - CESTAT CHENNAI

Reverse charge mechanism - Section 73 - Levy of tax on GTO service - Held that:- even the amended Section 73 takes in only the case of assesses 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 persons who come under Section 71A is not brought under the net of Section 73. The above being the position show cause notices issued to the appellants invoking section 73 are not maintainable - Decision .....

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involved in this case is that consequent on the enactment of Finance Act, 2000 and the Finance Bill, 2003, the service tax payment on GTO was brought under reverse charge mechanism where the recipient shall pay service tax. Therefore, the respondent was liable to pay service tax. The adjudicating authority issued show cause notice dated 12.04.2001 under Section 73 demanding service tax for the period March 1998 to May, 1998 and confirmed the demand. The Commissioner (Appeals) set aside the adjud .....

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Ld. Advocate on behalf of the appellant reiterated the findings of the OIA and submits that the lower authority has correctly allowed their appeal. Revenue s main ground of appeal is that even though the Hon ble Supreme Court dismissed the appeal filed by the department, two civil appeals were subsequently admitted by the Hon ble Supreme Court on similar issue in the case of Gujarat Carbon & Industries Ltd. To keep the issue alive Revenue preferred this appeal. He further submits that the Ho .....

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ns of both the sides. On perusal of the records we find that the lower appellate authority allowed the appeal by relying the Hon ble Supreme Court decision in the case of L.H. Sugar Factories Ltd. The Revenue s main ground is that on similar appeals the Hon ble Supreme Court has admitted the revenue appeals on identical issue in Civil appeal No. 1618/2005 filed by the Commissioner of Central Excise, Vadodara in the case of Gujarat Carbon & Industries Ltd., and Civil Appeal No. 7144/2005 file .....

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be noted that in an identical case in Commissioner of Central Excise, Meerut-II v. L.H. Sugar Factories Ltd. and Ors. - (2005 (13) SCC 245), this Court agreed with similar conclusions of the Tribunal. In the said case, the conclusions of the Tribunal were as follows: The above would show that even the amended Section 73 takes in only the case of assesses 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 .....

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case of CCE Vs. Thiru Arooran Sugars Ltd. (supra) had dismissed the Revenue appeal. By relying the above Apex Court decision. The relevant portion of the said decision is reproduced as under:- 4. As far as the present case is concerned, show cause notice under Section 73 of the Act was issued on 19-10-2001. This was issued on the strength of validation provision on the levy of Service Tax on the recipient of goods transport operator service. The first Appellate Authority viewed that having rega .....

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and Service Tax Appellate Tribunal, New Delhi in the case of L.H. Sugar Factories Limited & Os. v. CCE, Meerut-II - 2004 (61) RLT 142 = 2006 (3) S.T.R. 230 (Tribunal) = 2004 (165) E.L.T. 161 (Tribunal) wherein the Bench had elaborately dealt with the effect of introduction of Section 71A in the Finance Act, 2003 and also Section 73, as amended by Finance Act, 2003 and allowed the appeal. Thus when the above decision of the Tribunal in L.H. Sugar Factories Limited was confirmed by the Apex C .....

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