At, Customs Excise Service Tax Appellate Tribunal South Zonal Bench At Chennai
By, THE HONOURABLE MR. P.G. CHACKO
By, MEMBER (JUDICIAL) & THE HONOURABLE MR. P. KARTHIKEYAN
By, MEMBER (TECHNICAL)
Shri M.Saravanan, Consultant. For the Appellants. Shri B.L.Meena, SDR. For the Respondents.
P.G. Chacko, Member (Judicial)
The appellants in these appeals had received Goods Transport Operators Service (GTO service, for short) during the period 16.11.97 to 2.6.98 but had not filed service tax returns or paid tax. Show-cause notices were issued to them on 29.10.2002 by the department demanding the tax for the above period and also proposing penalties on the noticees. The original authority dropped these proposals. Its decision was reviewed by the Commissioner under Section 84 of the Finance Act, 1994 and the impugned orders were passed, wherein service tax with interest was demanded from the appellants and penalties were imposed on them. Hence the present appeals and the accompanying applications.
2. After examining the records and hearing both sides, I am of the view that the appeals require to be summarily disposed of. Accordingly, after dispensing with predeposit, I take up the appeals.
3. It has been submitted by ld.consultant for the appellants that the issue is no longer res integra inasmuch as, it has been settled against the Revenue in a plethora of cases. It is submitted that the ground raised by the reviewing authority in the present cases for demanding service tax from the appellants and imposing penalties on them was rejected by this Bench. In Final Order No.1199-1237/06 dt. 1.12.2006 passed in a batch of appeals. Ld.consultant has also referred to Final Order No.397/2007 dt. 9.4.2007 passed by this Bench in Sri Venkatesa Mills Ltd. Vs CCE Coimbatore, 2007 (80) RLT 824 (CESTAT-Che.), wherein the aforesaid final order was followed and a similar demand of service tax was set aside. Ld.SDR has reiterated the findings of the Commissioner.
4. After considering the submissions, I find that the issue is covered by the decisions cited by ld.consultant. Para-2 of the final order passed in Sri Venkatesa Mills case is reproduced below :-
'2. After hearing both sides and considering their submissions, I find that, in the same party's case relating to 'Goods Transport Operators' Service' for the period 16.11.97 to 1.6.98, this Bench held in their favour in Appeal No.S/121/2005 vide Final Order Nos.1199 to 1237/2006 dt. 1.12.2006. The ratio of the decision relating to GTO service is equally applicable to the present case relating to C&F service inasmuch as, in the case of L.H. Sugar Factories Ltd. Vs CCE Meerut, 2004 (165) ELT 191 (Tribunal) affirmed by the apex court in 2005 (187) ELT 5 (SC), which was followed in final order dt. 1.12.2006 ibid, the question whether service tax was leviable on C&F service for the aforesaid period had also been considered and decided in favour of the assessee. For the sake of clarity, para-2 of final order dt. 1.12.2006 ibid is reproduced below :-
In these appeals, it is pointed out that, after the decision in L.H. Sugar Factories case, the Honble Supreme Court has admitted civil appeals filed by CCE Vadadora-I and CCE Chennai-III in the cases of Gujarat Carbon and Industries and Sundaram Fasteners Ltd. respectively and that those civil appeals challenging the view taken in L.H.Sugar Factories case have been admitted by the court. However, there is no claim that the operation of the orders passed by this Tribunal in the cases of Gujarat Carbon and Industries and Sundaram Fasteners Ltd. was stayed by the apex court. In these appeals, the appellants proceed to discuss the provisions of Sections 70, 71, 71A & 73 of the Finance Act, 1994. It is contended that both the service provider filing return under Section 70 and the service recipient filing return under Section 71A are to converge necessarily at Section 71 for the purpose of verification'. It is contended that the service recipient, required to file self-assessed tax return under Section 71A, is also covered within the ambit of Section 73 (1) (a). Accordingly, the appellants' case is that the subject SCNs were issued within the powers of the department under Section 73 (1) (a) of the Finance Act, 1994. Ld.SDR has reiterated this case of the department. Ld.counsels/consultants, opposing this plea, submit that the above contentions would not stand the test of the ruling given
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by the apex court in the case of L.H. Sugar Factories (supra). On a perusal of the apex court's judgment in L.H.Sugar Factories case, I find that the above legal proposition made by the appellants is not sustainable inasmuch as their lordships of the apex court rendered their ruling after considering the aforesaid provisions of the Finance Act, 1994 as amended.' 5. Following the above decision, I set aside the impugned orders and allow these appeals.