2011 (7) TMI 692 - AT - Service Tax

Demand - Clearing and Forwarding Agency Services - The issue is that during the impugned period whether the service tax can be demanded from the service recipient through show-cause notice issued in this case - in these cases the show-cause notices issued on 31.07.2001 and 16.08.2002 are not sustainable - Decided in favor of the assessee

Summary

Issues:
1. Whether the demand of service tax raised against the appellants is sustainable for the respective periods under different categories.
2. Whether the show-cause notices issued to the appellants are maintainable during the impugned period.

Analysis:

Issue 1:
The appellants filed appeals against orders confirming the demand of service tax. In Appeal No. ST/41/2005, the demand was raised against the appellant as a Goods Transport Operator for the period 16.11.1997 to 30.05.1998. In Appeal No. ST/42/2005, the demand was raised for the period from 16.07.97 to 31.08.99 under the category of Clearing and Forwarding Agency Services. The advocate for the appellant argued that amendments in the Service Tax Rules made the service recipient liable to pay service tax, but there was no corresponding amendment in the Finance Act, making the service receiver not liable to file service tax returns. Citing relevant case laws, the advocate contended that the demands were not sustainable due to the ultra vires nature of the rules. The Revenue, represented by the JDR, supported the impugned orders. The Tribunal held that the show-cause notices issued on 31.07.2001 and 16.08.2002 were not sustainable, leading to the demands being unsustainable as well. The appeals were allowed, and the impugned orders were set aside.

Issue 2:
The crucial issue was whether the service tax demand from the service recipient through the show-cause notices issued during the impugned period was valid. The Tribunal referred to a previous case involving L.H. Sugar Factories Ltd., where it was established that the liability to file a return was only under Section 71A, not covered by Section 73. As the show-cause notices invoked Section 73, they were deemed not maintainable. Consequently, the demands were considered unsustainable. The Tribunal allowed the appeals, setting aside the impugned orders with consequential relief.

This comprehensive analysis of the judgment highlights the arguments presented by both parties, the legal interpretations made by the Tribunal, and the final decision rendered on the issues raised in the appeals.