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UNION OF INDIA Versus SHRI MAHESH GRANITES PVT. LTD.

2008 (10) S.T.R. 3 (Raj.) - Central Excise Appeal No. 55 of 2007 - Dated:- 6-12-2007 - N.P. Gupta and Munishwar Nath Bhandari, JJ. Shri V.K. Mathur, for the Appellant. ORDER Aggrieved by the order dated 14-6-2006 passed by the Customs, Excise and Service Tax Appellate Tribunal, New Delhi, this appeal is preferred by the Department. 2. The facts relevant to the present matter are, that the assessee was served with a Show Cause Notice dated 2-7-2002 under the Section 73 of the Finance Act, 19 .....

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T. page 5 (S.C.). In the said judgment, the Hon ble Apex Court was clearly of the view, that the cases, which are covered by the provision of Section 71A cannot be covered by issuing notice under Section 73 of the Act, and therefore, the Revenue has no jurisdiction to serve the notice under Section 73 of the Act of 1994, as it stood in 1994 and thereafter, as amended till issuance of the Show Cause Notice. Even, the very same, tribunal had also decided the bunch of the cases, considering the jud .....

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ection 73 takes in only the case of assessee 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. 3. We entirely agree with the conclusion arrived at by the Tribunal. We find no merit in these appeals a .....

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. It has been specifically submitted, that the tribunal failed to consider, while relying on the judgment of Hon ble Supreme Court, reported in 2005 (187) E.L.T. page 5 (S.C.), that issue regarding the liability to pay service tax by the assessee did not come to an end, and therefore, main argument, canvased is, that even in the liqht of the judgment of the Hon ble Apex Court, referred to above, the assessee is still liable to pay service tax, and therefore, judgment of the tribunal as assailed .....

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