2016 (9) TMI 743 - AT - Service Tax

GTA services - reverse charge - It is the case of the appellant that after amendment to Notification No. 43/97-ST dated-05/11/1997 under the Finance Act, 2003 retrospectively the benefit ought to have been given by the first appellate authority. - Held that - From the above ratio laid down by the Supreme Court, a notification has to be interpreted by the plain and clear meaning throwing out of a notification. None of the case laws relied upon by the appellant is with respect to Notification No. 43/97-ST dated 5/11/1997 amended retrospectively. Plain and clear meaning of Notification No. 43/97-ST as amended retrospectively has already been made by this Bench in the case of Pataka Industries (P) Ltd. Vs. Commr. of Central Excise, Bolpur (2008 (9) TMI 155 - CESTAT, KOLKAT). No other contrary judgment has been placed on record by the appellant with respect to Notification No. 43/97-ST dated 5/11/1997. Respectfully following the ratio laid down by this Bench, there is no reason to allow the appeal of the appellant on merits. So far as the issue of time bar is concerned, it is observed that this issue was never raised before the adjudicating authority or the first appellate authority, therefore, the same cannot be allowed to be raised at the second appellate stage. Decided against the assessee.

Summary

Issues:
Interpretation of Notification No. 43/97-ST dated 5/11/1997 as amended by Finance Act, 2003; Duty liability on GTA service during 16/11/1997 to 01/06/1998; Time bar for demand.

Analysis:

Interpretation of Notification No. 43/97-ST:
The appellant contended that the first appellate authority erred in rejecting their appeal on the chargeability of GTA service on a reversed charge basis during the relevant period. They argued that post-amendment to Notification No. 43/97-ST by the Finance Act, 2003, the benefit should have been granted retrospectively. The appellant cited various case laws to support their interpretation, emphasizing that the notification must be understood in light of the amendments made. However, the Revenue argued that the appellant's case lacked specific relevance to the retrospective amendment in question. The Tribunal noted the identical nature of the case with a previous judgment and upheld the decision, stating that the appellant did not fall under the exemption provided by the notification, even as a non-trading private company registered as a small scale industry. The Tribunal emphasized that the notification should be interpreted based on its clear and plain meaning, as established in previous judgments.

Duty liability on GTA service:
The core issue revolved around whether the appellant was liable to discharge duty on GTA service during the specified period due to the retrospective amendment of Notification No. 43/97-ST. The appellant argued for exemption based on their interpretation of the notification, while the Revenue contended that the appellant did not meet the criteria for exemption. The Tribunal, following precedent, dismissed the appeal, stating that the appellant did not qualify for the exemption under the notification, regardless of their registration status as a small scale industry. The Tribunal reiterated that the notification should be interpreted clearly and plainly, as per established legal principles.

Time bar for demand:
The appellant raised the issue of the demand being time-barred due to the absence of allegations of suppression or willful misstatement in the show cause notice. The appellant argued that penalties under specific sections of the Finance Act, 1994 were not imposable as there was no intent to evade payment of duty. However, the Tribunal noted that the time bar issue was not raised before the lower authorities and hence could not be entertained at the appellate stage. Consequently, the Tribunal dismissed the appeal based on the observations made.

In conclusion, the Tribunal dismissed the appeal, emphasizing the need to interpret the notification based on its clear and plain meaning, as established in previous judgments. The decision highlighted the importance of raising all relevant issues at the appropriate stages of the legal process to ensure their consideration and resolution.