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2015 (2) TMI 435 - AT - Service TaxClearing and Forwarding Service - Demand u/s 73 - Held that - Following decision of Commissioner of Central Excise, Aurangabad Versus M/s. Shetkari SSK Ltd. & Others 2011 (7) TMI 739 - CESTAT, MUMBAI - impugned order is set aside - Decided in favour of assessee.
Issues:
- Appeal against demand on the appellant as a recipient of Clearing and Forwarding Service. - Interpretation of Section 73 of the Finance Act, 1994 prior to 10.9.2004. - Validity of show-cause notices issued before 10.9.2004 for recovery of service tax. Analysis: 1. The appellant filed an appeal against the demand confirmed by the Commissioner (Appeals) as a recipient of Clearing and Forwarding Service. The Show Cause Notice was issued under Section 73 of the Finance Act, 1994, demanding service tax from March 1998 to August 1999. 2. The appellant relied on a Tribunal decision to argue that prior to 10.9.2004, recipients were not liable to file returns under Section 70 or 71 of the Act. The issue was settled against the Revenue in previous Tribunal orders, where it was held that demands raised by invoking Section 73 before 10.9.2004 were not sustainable. 3. The Tribunal considered various cases and amendments to Section 73 of the Finance Act, 1994. It was noted that prior to the substitution of Section 73 in 2004, it applied to cases where returns were to be filed under Section 70 but not under Section 71A. Therefore, show-cause notices issued before 10.9.2004 were deemed invalid. 4. The Tribunal emphasized the importance of judicial discipline and upheld previous decisions that show-cause notices issued before the 2004 amendment to Section 73 were not in accordance with the law. Consequently, the demands based on such notices were deemed unsustainable. 5. The Tribunal found the above legal principles fully applicable to the present case and set aside the impugned order, allowing the appeal against the demand on the appellant as a recipient of Clearing and Forwarding Service. The appeals filed by the Revenue were dismissed based on the invalidity of show-cause notices issued before 10.9.2004 for recovery of service tax.
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