2018 (8) TMI 806 - AT - Service Tax

Goods Transporter Operators - retrospective amendment to the provisions of Finance Act - Held that - An identical issue was subject matter of Tribunal s decision in the case of M/s Seksaria Biswan Sugar Factory Ltd. Vs Commissioner of Central Excise, Lucknow, 2015 (12) TMI 1404 - CESTAT ALLAHABAD wherein after taking into consideration the entire facts, benefit was extended to the assessee even though no show cause notice was issued and service tax was deposited by the assessee under the instruction of the Revenue. Appellant cannot be penalized for obeying the instructions of visiting staff - the authorities below is directed to process the assessee s claim for refund of the deposited amount - appeal allowed.

Summary

Issues:
1. Liability to pay Service Tax on services received from Goods Transporter Operators during a specific period.
2. Claim for refund based on Supreme Court decision and Tribunal's ruling.
3. Dispute regarding the maintainability of show cause notices and impugned orders.
4. Benefit extension to the assessee in the absence of show cause notice for recovery of the amount.

Analysis:
1. The appellant received services from Goods Transporter Operators between 16.11.1997 to 01.06.1998 and was later required to pay Service Tax following a retrospective amendment to the Finance Act. The Central Excise officers visited the factory on 27.03.2002 and enforced the payment of Service Tax.

2. Subsequently, the appellant sought a refund citing a favorable decision by the Hon'ble Supreme Court in a similar case and a Tribunal's ruling. The Commissioner (Appeals) acknowledged the levy of Service Tax but considered the Supreme Court's judgments stating that show cause notices to the receivers of such services were not maintainable under Section 73 of the Finance Act, 1994.

3. The Commissioner (Appeals) set aside the notices and impugned orders for most appellants, except those who had already paid the Service Tax without receiving a show cause notice. The Appellate Authority recognized the issue being covered by previous decisions but did not grant the benefit to the appellant due to the absence of a show cause notice for recovery.

4. The Appellate Tribunal referred to a similar case where the benefit was extended to the assessee despite no show cause notice being issued, emphasizing that the appellant should not be penalized for following the Revenue's instructions. Consequently, the impugned order was set aside, and authorities were directed to process the appellant's claim for a refund of the deposited amount.

In conclusion, the appeal was allowed in favor of the appellant based on the principles of fairness and adherence to legal precedents, ensuring that the appellant was not penalized for complying with instructions and that the refund claim was processed accordingly.