2006 (12) TMI 204 - AT - Central Excise

Summary

Issues:
1. Application for waiver of pre-deposit and stay of recovery of Service Tax.
2. Validity of the impugned Order-in-Revision.
3. Interpretation of Section 71A of the Finance Act, 2003.
4. Compliance with the judgment of the Hon'ble Supreme Court in a similar case.
5. Admissibility of demands under Section 73 post enactment of Finance Act, 2003.

Analysis:
1. The appellants filed an application seeking waiver of pre-deposit and stay of recovery of the Service Tax demanded in the impugned order. The impugned Order-in-Revision was passed by the Commissioner of Central Excise, Coimbatore, revising the Order-in-Original that had dropped the proposal to demand Service tax on the Goods Transport Operator's service availed by the appellants. The main appeal proceeded after dispensing with pre-deposit.

2. The ld. Consultant for the appellants argued that the impugned order confirming the demand under Section 73 of the Finance Act was not sustainable in law. He relied on the judgment of the Hon'ble Apex Court in a similar case to challenge the Commissioner's decision. The Commissioner's reasoning, based on the pendency of a Civil Appeal, was found to be inconsistent with the established legal principles. The impugned order demanding Service Tax and penalty was set aside as it did not follow the precedent set by the Apex Court.

3. The ld. SDR contended that Section 71A of the Finance Act, 2003 required persons availing Goods Transport Operator's service during a specific period to pay Service tax and file returns within a prescribed timeframe. However, the Tribunal found that demands invoking Section 73 post the enactment of Finance Act, 2003 were not maintainable for the appellants as they were not liable to file returns under Section 70 but under Section 71A. Therefore, the impugned order was unsustainable.

4. The Tribunal emphasized that the Commissioner must adhere to the judgment of the Apex Court on the same issue and cannot pass orders contrary to established legal principles. The impugned order was found to be inconsistent with the precedent set by the Apex Court and was set aside. The Tribunal's decision was based on the Tribunal's finding in a previous case and the interpretation of relevant provisions of the Finance Act, 2003.

5. In conclusion, the Tribunal allowed the appeal, holding that the impugned order demanding Service Tax and penalty was not sustainable as it did not align with the legal principles established by the Apex Court and the interpretation of relevant provisions of the Finance Act, 2003. The impugned order was set aside, and the appeal was allowed.