TMI Blog2017 (6) TMI 861X X X X Extracts X X X X X X X X Extracts X X X X ..... ection 73 for non filing or the return under Section 70 as there was no requirement for filing of return by the service Recover. Hence, demand of interest and penalty cannot be sustained - appeal allowed - decided in favor of appellant. - ST/121/2009 - Order No. FO/A/75580/2017 - Dated:- 6-4-2017 - Shri P. K. Choudhary, Judicial Member Shri. Bhaskar Thakkar, CA for the Appellant Shri. K. Choudhary, Suptd. (AR) for the Respondent ORDER Per: Shri P. K. Choudhary Heard both sides and perused the appeal records. 2. The issue involved in this case is demand of Service Tax for the period 16.11.1997 to 01.06.1998 in respect of service under the category of 'Good Transport Operator Service'. Show Cause Notice ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... upheld by the Hon ble Supreme Court as reported in 2005 (187) E.L.T 5 (S.C.). Subsequently, the Hon ble Supreme Court in the case of Commissioner of Central Excise, Baroda-I, Vs. Gujrat Carbon Industries Ltd . reported in 2008 (12) S.T.R. 3 (S. C.), following the earlier decision of L.H. Sugar Factories Ltd. (Supra) dismissed the Revenue appeal. The relevant portion of the said decision is reproduced below :- 4. The Tribunal referred to Section 73 of the Finance Act which reads as follows : Section 73 (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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce Bill, 2003. Thus, during the period in question no notice could have been issued under Section 73 for non filing of return under Section 70. According to the Tribunal, the service receiver was not required to file any return under Section 70 of the Finance Act, 1994 prior to 2003. The Tribunal accordingly quashed the order demanding service tax from the respondents-service availers. Similar view has been expressed in the connected cases. 5. In the present case, the appellant is contesting the demand of interest and penalty as they have already paid the tax. Show Cause Notice was issued under Section 73 (1) (a) of the Act, 1994 proposing for recovery of tax liability. The Hon ble Supreme Court held that the liability to file return ..... X X X X Extracts X X X X X X X X Extracts X X X X
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