9911796707
|
Home
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2009 (2) TMI 44 - AT - Service TaxRefund of service tax paid by recipient of GTO service - Decision of L.H.Sugar Factories Ltd. is not applicable to case - service tax paid on the basis of self-assessment validated under the amended provisions of Section 71A of the Finance Act, 1994 as inserted by the Finance Act, 2003 - any contrary decision rendered by this Tribunal cannot be followed, because that would be defying the law laid down by the Hon ble Supreme Court in Gujarat Ambuja Cement Limited
Issues Involved:
1. Validity of service tax paid by BIL as recipients of services from Goods Transport Operators (GTO) and Clearing and Forwarding (C&F) agents for specified periods. 2. Applicability of Section 73 and the doctrine of res judicata. 3. Time-barred claims and retrospective amendments. 4. Liability to pay interest on late payment of service tax. Detailed Analysis: 1. Validity of Service Tax Paid by BIL: The main issue is whether BIL validly paid service tax as recipients of services from GTO and C&F agents for the periods from 16.11.1997 to 02.06.1998 and 16.07.1997 to 16.10.1998. The Supreme Court upheld the constitutional validity of Sections 116 and 117 of the Finance Act, 2000, and Section 158 of the Finance Act, 2003, which retroactively validated the imposition of service tax on recipients of these services. The Tribunal found that BIL's obligation to pay tax under the amended provision was never extinguished and that the service tax paid by BIL on a self-assessment basis was valid. 2. Applicability of Section 73 and Doctrine of Res Judicata: The Tribunal noted that no demand was made by issuing any show cause notice to BIL, thus Section 73 was not applicable. The Commissioner (Appeals) had erroneously relied on the decision in L.H. Sugar Factories Ltd., which was not relevant due to the retrospective amendments validated by the Supreme Court in Gujarat Ambuja Cements Ltd. The doctrine of res judicata, which prevents re-litigation of the same issue, was argued by BIL but was rejected by the Tribunal. The Tribunal held that res judicata does not apply in matters of revenue and public interest, citing the Supreme Court's decision in Commissioner of Central Excise vs. Hira Cement. 3. Time-Barred Claims and Retrospective Amendments: BIL contended that the retrospective amendment could not revive a time-barred demand. However, the Tribunal held that the retrospective amendments brought by the Finance Act, 2000, and the Finance Act, 2003, were valid and enforceable. The Tribunal cited the Supreme Court's judgment in Gujarat Ambuja Cements Ltd., which upheld the retrospective validation of tax impositions and clarified that the statutory foundation for the Laghu Udyog Bharti decision had been replaced. 4. Liability to Pay Interest on Late Payment of Service Tax: BIL filed the ST-3B return on 27.04.2004, beyond the prescribed period, making them liable to pay interest under Section 75 of the Finance Act, 1994, for the late payment of service tax. The Tribunal upheld the Orders-in-Original directing BIL to pay interest amounts of Rs.1,798/-, Rs.18,342/-, and Rs.58,179/-. Conclusion: The Tribunal allowed the Revenue's appeals (ST/04/06 and ST/05/06), set aside the Commissioner (Appeals)' orders, and restored the Orders-in-Original. BIL's appeals (ST/112/05, ST/113/05, and ST/114/05) were rejected, confirming that service tax was validly paid and BIL was liable for the interest on late payments.
|
