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2013 (8) TMI 21 - HC - Service TaxValidity of substantial liability of service tax - Whether non-addition of Section 71-A in the Finance Act, 1994 and also in its non insertion in erstwhile Section 73 of the Finance Act, 1994 invalidates the substantial liability of service tax - GTA - Show cause notice issues for realization - Commissioner confirmed service tax and levied penalty - Tribunal held demand of service tax not sustainable - Held that - The liability to file return is cast on the appellants only under Section 71A, which was introduced in the Finance Bill, 2003. The class of persons, who come under Section 71A is not brought under the net of Section 73 and thus a show cause notice invoking Section 73 is not maintainable - It is not denied that the respondent was not required to file the return nor any show cause notice or demand was issued or was outstanding when the amendment in the Act came into force - Following decision of Commissioner of Central Excise Vadodara-I vs. Gujarat Carbon & Industries Ltd 2008 (8) TMI 4 - SUPREME COURT - Decided against Revenue.
Issues:
Delay condonation in Central Excise Appeal under Section 35-G of Central Excise Act, 1944. Substantial question of law regarding non-addition of Section 71-A in the Finance Act, 1994. Validity of service tax liability based on show cause notice. Interpretation of retrospective amendments in Finance Acts. Applicability of Section 73 of Finance Act, 1994. Challenge to tax, interest, and penalties by M/s Hindalco Industries Ltd. Dispute over penalty rates under Section 76. Impact of Finance Act amendments on demands under Section 73. Liability to file return under Section 71A. Maintainability of show cause notice invoking Section 73. Analysis: The High Court of Allahabad heard a Central Excise Appeal regarding a delay of 19 days, which was condoned after sufficient explanation. The appeal raised a substantial question of law concerning the non-addition of Section 71-A in the Finance Act, 1994, affecting the service tax liability based on a show cause notice issued for clearing & forwarding agent services. The Customs Excise & Service Tax Appellate Tribunal confirmed the service tax demand from Hindalco and imposed penalties. The Tribunal considered the retrospective amendments in Finance Acts, questioning the validity of demands under Section 73 for non-assessees during specific periods. M/s Hindalco Industries Ltd challenged the tax, interest, and penalties imposed, while the revenue contested the penalty rate under Section 76. The Tribunal noted that demands issued under Section 73 for certain periods may not be sustainable based on previous judgments. The opinion of the Apex Court in Commissioner of Central Excise Vadodara-I vs. Gujarat Carbon & Industries Ltd was cited to argue that Section 73 applies only to assessees liable to file returns under Section 70, excluding those under Section 71A. The Court upheld the Tribunal's decision, emphasizing that the liability to file returns under Section 71A does not fall under Section 73. As the respondent was not required to file returns or faced any outstanding demands when the Act was amended, the show cause notice invoking Section 73 was deemed not maintainable. The judgment favored the assessee, leading to the dismissal of the Central Excise Appeal.
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