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2015 (2) TMI 1111 - HC - Service TaxRefund Claim - Relevant Date - Period of limitation - GTA service - Held that - the relevant date, as defined in sub-section (6) of Section 73 had to be with reference to Section 71A, and not under Section 71. In the present case, the appellant is a service recipient , and under Rule 2(d)(xii), it was liable to pay service tax for the period 16-11-1997 to 2-6-1998. The provision was struck down, on which a retrospective amendment was made, which was held valid by the Supreme Court in Gujarat Ambuja Cement Ltd. For the relevant period in the present case, the appellant, as an assessee, was required to file return under Section 71A, and not under Section 71, and thus, the period of show cause notice had to be calculated from the date, under Section 71A, and not Section 71. In the present case, the appellant was a service recipient. He was required to file returns for the period between 16-11-1997 to 2-6-1998, and thus, the provisions of Section 71A will be attracted, and not provisions of Section 71. - Refund allowed.
Issues:
Central Excise Appeal under Section 35G - Interest calculation based on relevant date under Section 71A - Applicability of judgments in L.H. Sugar Factories Ltd. and Gujarat Ambuja Cement Ltd. - Service recipient's liability to pay service tax - Tribunal's error of law. Analysis: The High Court heard a Central Excise Appeal concerning the interest calculation based on the relevant date under Section 71A of the Central Excise Act, 1944. The appellant, Mangalam Cement Limited, challenged an order passed by the Customs, Excise and Service Tax Appellate Tribunal, Principal Bench, New Delhi, which allowed the respondent-Department's appeal but waived the penalty due to the appellant's pursuit of the matter in writ petitions before the Supreme Court. The Tribunal's judgment referenced the cases of Commissioner of Central Excise, Meerut-II v. L.H. Sugar Factories Ltd. and Gujarat Ambuja Cement Ltd., highlighting the relevance of the latter in the context of validating provisions upheld by the Supreme Court. The High Court found merit in the appellant's argument that the relevant date should be determined with reference to Section 71A, not Section 71, as the appellant was a service recipient liable to pay service tax for a specific period. The Court emphasized that the appellant was required to file returns under Section 71A, not Section 71, impacting the calculation of the show cause notice period. The Court also considered the judgment in L.H. Sugar Factories Ltd., where the Supreme Court held that show cause notices invoking Section 73 were not maintainable for assessees liable to file returns under Section 71A. This position was reiterated in Commissioner of Central Excise, Vadodara-I v. Gujarat Carbon and Industries Ltd., where the Tribunal's conclusions aligned with the earlier decision. The High Court dismissed the respondent's contention that the Tribunal did not commit any legal error justifying the Court's interference. It reiterated that the appellant, as a service recipient, had obligations under Section 71A for the specified period, emphasizing the distinction between Sections 71A and 71 in determining liability. Consequently, the Central Excise Appeal was allowed, setting aside the Tribunal's judgment dated 30-5-2007.
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