TMI Blog2007 (6) TMI 31X X X X Extracts X X X X X X X X Extracts X X X X ..... e said taxable service was ex empted from Service Tax by Notification No. 49/98-S.T. dated 2-6-1998. Thus, Service Tax on taxable services provided by the GTOs was leviable on the recipient of the services for the period from 16-11-1997 to 1-6-1998. The respondent did not obtained registration under Rule 4 of the Service Tax Rules nor paid Service Tax under Rule 6 and did not file returns as required by Rule 7. On examination of the ledgers produced by the respondents, it appeared that the entire amount of taxable service had escaped assessment and the Service Tax calculated thereon was Rs. 9,981/-. As no return was filed under Section 70 of the Finance Act, 1994 and material facts were not disclosed, show cause notice was issued to the respondent on 22-11-2002 for recovery of the Service Tax and penalties. I the show cause notice filed on 30-12-2002 (wrongly typed as 30-6-2002) the respondent pleaded that, it was a SSI Unit and, therefore, not liable to pay Service Tax. The respondent relied upon the decision of Hon'ble Supreme Court in Laghu Udyog Bharati v. Union of India reported in 2006 (2) S.T 276 (S.C.) = 1999 (112) E.L.T. 365 (S.C.), in which Rule 2(d)(xii) was held to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3.1 While we are on this aspect of the matter, we may dispose of one contention, which was sought to be raised on behalf of the respondent on the basis of the averments made in Paragraph 2 of the reply to the show cause notice. It was submitted by the learned Counsel that, the Respondent was SSI Unit and was manufacturing the excisable goods, as stated in Para 2 of its reply. Reliance was also placed on the certificate dated 22nd March, 1990 issued in favour of the respondent by the District Industries Centre, Madhya Pradesh, stating that the respondent was a small scale industrial unit. In that certificate, the Office address of the respondent was different. The reliance placed on the said averment in the reply to the show cause notice and on the Notification dated 6-2-1998, which provided that the Service Tax payable by Small Scale Industry will be kept in abeyance, is wholly misconceived and ignores the respondent's own communication dated 29-9-2004, in Paragraph 3 of which, it was specifically stated as under: "3. In this context, it is submitted that the noticee's company was established under Companies Act, 1956 as Private Limited Company and were/are a solely and excl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... de in Sections 65, 66 and 67 of the Act and also pointed out that even Rule 2(d)(xvii), which was struck down by the Hon'ble Supreme Court, was validated. He, therefore, submitted that the liability of the respondent to pay Service Tax was firmly established and could not be disputed. He argued that, the show cause notice was issued on 29-11-2002, after the amendments and revalidating provisions were enacted by Sections 116 and 117 of the Finance Act, 2000. Though the show cause notice was issued with reference to the provisions of Section 73 read with Section 70 of the Act, it should be treated as effective even for the purpose of the provisions of Sections 73 and 71A of the Act. He argued that mere mention of a wrong provision in the show cause notice did not invalidate the same. Moreover, the decision of the Tribunal as affirmed by the Hon'ble Supreme Court in L.H. Sugar Factories Ltd. v. Commissioner of Central Excise, Meerut-Il (supra), was not applicable, because the basis of that decision, which was the decision of the Hon'ble Apex Court in Laghu Udyog Bharati v. Union of India (supra), no more survived from 12-5-2000, as held by the Apex Court in Gujarat Ambuja Cemen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cause notice that the respondent was a SSI unit manufacturing excisable goods, was subsequently withdrawn by the further reply to the show cause notice. The adjudicating authority has rightly found that the respondent was a registered dealer, who was not entitled to the benefit of such exemption. 7. It was further contended by the learned Counsel for the respondent that, Section 73 of the said Act would apply to persons who were required to file return under Section 70 and that Section 71A provided that Section 70 will not apply to those covered under the proviso to Section 68(i). He, therefore, submitted that Section 70 was inapplicable in the case of respondent and, therefore, no show cause notice could have been issued with reference to Section 70 of the Act against the respondent. He also submitted that the show cause notice was not revised after 30-11-2003. He finally pointed out from Paragraph 20 of the order of the adjudicating authority that the respondent/noticee had suo motu paid the amount of Service Tax. It appears that relying upon this submission, the adjudicating authority did not impose any penalty under Section 76, 77 or 78 of the Act. 8. The Hon'ble Sup ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection 71A which was a machinery provision. The contention that the time limit of filing the return in such cases should be computed on the basis of the provisions of Section 73 read with Section 70 from the date on which half-yearly returns were required to be filed under Rule 7, was rejected on the ground that those provisions of Section 70 and Rule 7 were wholly inapplicable in cases where the provisions of Section 71A applied. 8.1 Under Rule 7A, which was inserted from 14-5-2003, it was provided that notwithstanding anything contained in Rule 7, which related to half-yearly returns, an assessee, in cases of service provided by the goods transporter for the period-in-question, shall furnish a return within a period of six months from 13-5-2003 in Form ST-3B along with a copy of Form TR-6 in triplicate, failing which the interest and penal consequences as provided in the Act were to follow. It is obvious from this provision that even though the liability of the receiver of GTO services remained alive by virtue of the validating provisions for the period-in- question (16-11-1997 to 1-6-1998), the return was required to be filed within the period of six months from 13th May, 20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h was 13-11-2003 under the statute, and 30-11- 2003 as extended by the Hon'ble Supreme Court by virtue of its directions contained in Gujarat Ambuja Cements Ltd. v. Union of India (supra). No effort was made by the Revenue to issue a revised show cause notice in the context of the extended date for filing of the returns and payment of service tax. Without issuance of a show cause notice under Section 73 read with Section 71A in which it would be alleged that the tax was not paid and returns not filed by the extended date, it would have been impossible for the Revenue to have undertaken the proceedings of the nature contemplated by Section 73 of the Act for the recovery of the Tax that had escaped assessment in respect of the returns which were not filed. The show cause notice dated 29-11-2002 was wholly inadequate and inapplicable to the contingency that arose by virtue of the extended time limit for filing of the returns and payments of service tax by the extended date. Perhaps the Revenue ought to have been more vigilant by revising their notices which were earlier issued, to bring them in tune with the new provisions and the new situation that enabled the assessee to file a re ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
