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2015 (10) TMI 1304 - CESTAT BANGALORE

2015 (10) TMI 1304 - CESTAT BANGALORE - 2015 (40) S.T.R. 295 (Tri. - Bang.) - Relevant date of issuance of SCN - Claim of refund of service tax paid since no SCN was issued - GTA - No SCN issued for recovery of service tax for the relevant period since the writ petition were pending before the HC - when WP was dismisssed, assessee paid the service tax on its own - Exclusion of period for issue of SCN - Held That:- According to the provisions of Section 73(2b) Explanation where the service of the .....

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e the show-cause notice has to be considered as issued within the normal period of limitation.

The tax paid by the appellant is in accordance with law and therefore the demand for service tax made by Revenue has to be upheld. Consequently the refund claim filed by the appellant and the rejection of the same also has to be upheld. - Decided against the assessee.

Demand of Interest - Once service tax liability is upheld, interest liability is also upheld.

Impositio .....

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AR) ORDER Per : B.S.V. MURTHY The appellant is a manufacturer of cement and clinker. They are liable to pay service tax on the GTA service received by them as a receiver of service. the issues involved in both the appeals are linked with each other and therefore both the appeals are considered together and a common order is passed. 2. The appellant was the recipient of goods transport operator(GTO) service for the period from 16/11/1997to 02/06/1998 (period in respect of which tax was leviable o .....

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2003. 3. Levy was introduced in the year 1997 and was exempted w.e.f. 03/06/1998 by Notification No.49/98. The levy was challenged before the Hon ble Supreme Court and Honble Supreme Court in the case of Laghu Udyog Bharati Vs. UOI [1998(112) ELT 365 (SC)] held that the provisions of Rules 2(d)(xii) and 2(d)(xvii) are ultra virus of Finance Act, 1994. In the year 2000, in the Finance Act, various provisions were amended with retrospective effect. Section 116 amended Section 65 in order to inclu .....

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a non-obstante clause and providing that irrespective of provisions of Sections 69 and 70, the GTO has to furnish return to the Central Excise officer within 6 months from the date on which the financial bill became the act. Section 73 was amended to enable the Government to raise demands against persons liable to file returns under Section 71A. 5. The Hon ble Supreme Court gave another 15 days i.e. the time for filing the return was allowed upto 28/11/2003 pending the decision of the Supreme C .....

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d which were already permitted by the Hon ble Supreme Court earlier in November 2003. 7. In the case of the present appellant, when the retrospective amendment was carried out in the year 2000, the appellant filed a writ petition before the Hon ble High Court of Andhra Pradesh No.4184/2001 challenging the provisions of Section 116 and 117 of Finance Act, 2000. After the letter was received from the Range Superintendent dt. 11/11/2003 and 11/12/2003, the appellant filed another Misc. application .....

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itioner. The Court made the following ORDER: Pending passing further orders, there shall be stay. However, the stay order granted by this court however be subject to passing further orders in the writ petition. 8. The Department did not take any further action and on 09/08/2005 Hon ble High Court relying on the decision of the Hon ble Supreme Court in the case of Gujarat Ambuja Cements Ltd. Vs. UOI [2006(3) STR 608 (SC)], dismissed the writ petition filed by the appellant. Thereafter on 02/09/20 .....

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r completion of proceedings, the demand for service tax was upheld, amount deposited was appropriated, interest was demanded and a penalty of ₹ 1,36,800/- was imposed in addition to penalty under Section 76 of Finance Act, 1994 which has not been quantified. 9. In appeal No.ST/84/2008, the demand for service tax with interest and penalty imposed is the subject matter. 10. After payment of the service tax in September 2005, on 24/01/2006 appellant filed a refund claim on the ground that no .....

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the amount of service tax, demand for interest and imposition of penalty can be sustained or not; ii. If the answer is no (only if the answer is no) to the first question above, the question of eligibility of refund arises; and iii. Whether penalties imposed can be sustained or not and whether interest is payable by the assessee or not. 12. The learned counsel on behalf of the appellant relied upon the decision of the Hon ble Supreme Court in the case of L.H. Sugar Factories Ltd. upholding the .....

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red for taking a view in favour of the assessees in the case of L.H. Sugar Factories Ltd., were made good in the Finance Act, 2003 which came to be subsequently held valid by the Hon ble Supreme Court. Under the circumstances, the decision of the Hon ble Supreme Court in the case of L.H. Sugar Factories Ltd. would not be applicable to the present case. At this stage, it would be appropriate to take note of the fact that the Tribunal had relied upon the decision of the Hon ble Supreme Court in th .....

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tself. Therefore the show-cause notice will not be sustainable unless extended period is invoked. She submits that the stand taken by the Revenue that because of the stay granted by Hon ble High Court of Andhra Pradesh, the show-cause notice could not have been issued is not correct. It is her submission that the stay order passed by the Hon ble High Court did not specifically bar the Revenue from issuing the show-cause notice, therefore belated issue of show-cause notice without invoking suppre .....

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o the notice dt. 11/11/2003. The notice issued on 11/11/2003 required the assessee to pay service tax and interest and this would have been followed up by issue of a show-cause notice which can be called as commencement of further proceedings consequent to the letter issued on 11/11/2003. In view of the stay of all further proceedings pursuant to the letter dt. 11/11/2003, the stand taken by the Revenue that show-cause notice could not have been issued till the disposal of the writ petition file .....

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ld be issue of show-cause notice unless the assessee files the return and pays the tax which they did not do. In the absence of any filing the return and payment of tax, show-cause notice could not have been issued because there was a stay of all further proceedings. Therefore I agree with the submission of the learned AR that the stand taken by the Revenue that during the pendency of writ petition filed by the appellant, show-cause notice could not have been issued. According to the provisions .....

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idered as having been issued within one year. Therefore the show-cause notice has to be considered as issued within the normal period of limitation. 16. In view of the above discussion on merits, the tax paid by the appellant is in accordance with law and therefore the demand for service tax made by Revenue has to be upheld. Consequently the refund claim filed by the appellant and the rejection of the same also has to be upheld. I do so. 17. Now I come to the question whether interest is payable .....

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