2017 (11) TMI 653 - HC - Central Excise

Refund claim - GTO Service - extended period of limitation - Section 73 of the Finance Act, 1994 - Whether the first respondent is justified in observing that service tax was not recoverable under Section 73 of the Finance Act, 1994 from a recipient of GTO service for the aforesaid period inasmuch as the show cause notice issued for the category of persons mentioned under Section 71A is rightly covered under Section 73 as explained above? Held that - When the adjudication itself has been set aside, the 2nd respondent is entitled for refund. Reliance placed in the case of COMMISSIONER OF C. EX., PONDICHERRY Versus TEBMA SHIPYARDS LTD. 2013 (10) TMI 1322 - MADRAS HIGH COURT , where it was held that As per the Finance Act, 2004, Section 73(1)(a) of the Finance Act was amended with effect from 10-9-2004 validating the notice issued to Goods Transport Operators Service recipients by removing the clause the persons liable to file the returns under Section 70 from erstwhile Section 73 of the Finance Act. The very initiation of proceedings by issuance of show cause notice is bad in law. Appeal dismissed - decided against Revenue.

Summary

Issues:
1. Challenge to order granting refund to the assessee by CESTAT, Chennai.
2. Dispute regarding liability to pay service tax on freight charges by the assessee.
3. Appeal against rejection of refund claim by the Deputy Commissioner.
4. Appeal by the department against setting aside of adjudication order and direction to refund.
5. Interpretation of provisions of Finance Act, 1994 and Finance Act, 2003.
6. Application of case laws and decisions by the Tribunal and Supreme Court in determining liability for service tax.
7. Adjudication of substantial questions of law related to service tax liability under Section 73 of the Finance Act, 1994.

Analysis:
1. The appeal challenged an order by CESTAT, Chennai granting a refund to the assessee, a manufacturer of pipes, who utilized Goods Transport Operators' services without paying service tax. The department issued a show cause notice invoking the extended period of limitation under Section 73 of the Finance Act, 1994. The adjudicating authority initially dropped proceedings, but the Revisional Authority held the assessee liable for service tax due to retrospective amendments. The CESTAT, Chennai set aside the adjudication order and granted a refund to the assessee based on relevant case laws and Supreme Court decisions.

2. The Tribunal considered the retrospective amendments to the Finance Act, 1994 by the Finance Act, 2000 and 2003. It analyzed the liability of the assessee to pay service tax on freight charges paid to Goods Transport Operators. The Tribunal referred to case laws like L.H.Sugar Factories case and Gujarat Ambuja Cements Ltd. case to determine the applicability of Section 73 for recovering service tax from the assessee. The Tribunal upheld the decision that the assessee had no liability to pay service tax under Section 73 of the Finance Act, 1994.

3. The Deputy Commissioner rejected the refund claim filed by the assessee, leading to an appeal by the assessee. The Commissioner (Appeals) set aside the Deputy Commissioner's order, which was appealed by the department. The Tribunal considered the rights of the assessee for refund based on relevant case laws and the decision in L.H.Sugar Factories case. The Tribunal dismissed the revenue's appeal and upheld the grant of refund to the assessee.

4. The Tribunal addressed substantial questions of law raised in the appeal, including the justifiability of the service tax liability under Section 73 of the Finance Act, 1994, and the applicability of amendments to the Finance Act, 2000 & 2003. The Tribunal analyzed the provisions of the Finance Act and referred to relevant judgments to determine the liability of the assessee for service tax. The Tribunal dismissed the Civil Miscellaneous Appeal filed by the department and upheld the grant of refund to the assessee.

5. The Tribunal's decision in the present case was influenced by the interpretation of the provisions of the Finance Act, 1994 and Finance Act, 2003. The Tribunal considered the applicability of Section 73 for recovering service tax from the assessee and referred to case laws and Supreme Court decisions to support its findings. The Tribunal's analysis focused on the legal framework and relevant amendments to determine the liability of the assessee for service tax on freight charges paid to Goods Transport Operators.

6. The Tribunal's decision was based on a comprehensive analysis of the legal aspects involved in determining the liability of the assessee for service tax. The Tribunal considered the contentions raised by both parties, referred to relevant case laws, and applied the principles laid down in previous judgments to arrive at a reasoned decision. The Tribunal's judgment highlighted the importance of legal interpretation and application of case laws in resolving disputes related to service tax liability under the Finance Act, 1994.

7. The Tribunal adjudicated substantial questions of law related to service tax liability under Section 73 of the Finance Act, 1994. The Tribunal analyzed the provisions of the Finance Act, relevant case laws, and Supreme Court decisions to determine the liability of the assessee for service tax on freight charges. The Tribunal's decision was based on a thorough examination of legal principles and precedents, ensuring a fair and just resolution of the dispute between the parties.