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M/s Indian Oxalate Ltd., M/s S.R. Drugs Pvt. Ltd. Versus Commissioner of Central Excise, Kohlapur

2017 (7) TMI 563 - CESTAT MUMBAI

GTA service - reverse charge mechanism - whether the appellant is failed to pay Service Tax which it was liable to pay Service Tax under Section 68 of the Act? - Held that: - the appellant in view of the provisions of Section 2(i)(d)(xii) & (xvii) of the Service Tax Rules, 1994 as validated by Section 117 of Finance Bill, 2003, the appellant was held liable to pay Service Tax on Goods Transport Agency service as recipient of service and further required to file return under the amended Section 7 .....

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law? - Held that: - reliance was placed on the ruling of the Tribunal in the case of LH Sugar Factories Ltd. Vs. Commissioner of Central Excise, Meerut [2004 (1) TMI 111 - CESTAT, NEW DELHI], where in similar facts and circumstances where SCN was issued, it was held that during the relevant period Section 73 takes only in the case of appellant who are liable to file return under Section 70. The liability of filing returns is cast on the appellant under Section 71A as the receiver of service whic .....

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r (Judicial) Shri N.S. Patel, Advocate, for Appellant Shri A.B. Kulgod, AC (AR), for Respondent ORDER Per: Shri Anil Choudhary The appellants are in appeal against separate impugned orders passed by the Commissioner (Appeals), Pune-III. As the issue is common i.e. levy of Service Tax on the appellant in respect of Goods Transport Agency services provided during the period from 16.11.1997 to 1.6.1998. 2. For the sake of convenience, I take up the facts from the appeal No.ST/88054/13 filed by M/s .....

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gency service as recipient of service. A show-cause notice dated 12.11.2002 was issued for the period 16.11.1997 to 1.6.1998 invoking the extended period demanding the Service Tax in respect of Goods Transport Agency service on the appellant as recipient of service on reverse charge. This show-cause notice was under Section 73 of the Finance Act, 1994. Subsequently, sub-section 3 of Section 73 was amended by the Finance Act, 2003 retrospectively. However, in the amended Section 73, there was no .....

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t. 2.2 The show-cause notice was adjudicated vide Order-in-Original dated 23.11.2011 dropping the show-cause notice dated 12.11.2002/9.11.2004. The Assistant Commissioner adjudicating the show-cause notice has observed that the show-cause notices were un-quantified. Further, the issue is framed as to - (i) whether the appellant is failed to pay Service Tax which it was liable to pay Service Tax under Section 68 of the Act, (ii) whether provisions of Section 73(1) of the Act are correctly invoked .....

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Section 71A of the Act. 2.4 So far the second issue is concerned, it was observed that the appellant neither filed the mandatory return nor paid the Service Tax on the Goods Transport Agency service availed and thus they suppressed the material facts from the knowledge of the Revenue with an intention to evade tax and as such the provisions have been rightly invoked. 2.5 As regards the third issue whether the show-cause notice is sustainable being issue without quantification of the tax amount, .....

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reliance was placed on the ruling of this Tribunal in the case of Commissioner of Central Excise Vs. GPL Polyfils Ltd. - 2005 (183) ELT 27 (Tri-Del), wherein it has been held that duty amount when not quantified in the show-cause notice, no demand can be validly raised under Section 11A of the Central Excise Act. Further reliance was placed in the case of Metal Forging Vs. UOI - 2002 (146) ELT 241 (SC), wherein it has been held by the Apex Court that show-cause notice is mandatory requirement f .....

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65) ELT 161, where in similar facts and circumstances where show-cause notice was issued, it was held that during the relevant period Section 73 takes only in the case of appellant who are liable to file return under Section 70. The liability of filing returns is cast on the appellant under Section 71A as the receiver of service which was introduced in the Finance Bill, 2003. Thus, during the period in question no notice could have been issued under Section 73 for non-filing of return under Sect .....

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d, the Revenue preferred appeal before the Commissioner (Appeals), who vide the impugned order reversing the Order-in-Original and held that Service Tax is quantifiable from the appellant - recipient of service for the period 16.11.1997 to 1.06.1998 and have directed he adjudicating authority to quantify the liability and further confirmed the interest on the un-quantified amount. 3. Being aggrieved, the appellant is in appeal before this Tribunal on the following grounds: - (a) In paragraph 8 o .....

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o by the Commissioner (Appeals) is not relevant to the facts of the appellant's case and it is distinguishable. In the case of the appellant's first show-cause notice was issued on 12.11.2002 that too without quantifying the amount of tax. It was issued under Section 73 of the Finance Act, 1904 and was pending. Appellant's submit that the said show-cause notice did not survive due to the Hon'ble Apex Court's decision on the show-cause notices issued under Section 73 are not m .....

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