When demand arises due to retrospective amendment, no malafide can be attributed to the Assessee, hence extended period cannot be invoked

[Bimal jain]

Dear Professional Colleague,

When demand arises due to the respective amendment , no malafide can be attributed to the Assessee , hence extended period can not be invoked

We are sharing with you an important judgment of Hon’ble CESTAT, New Delhi, in the case of Commissioner of Central Excise, Raipur Vs. Lloyd Tar Products [2014 (4) TMI 1041 - CESTAT NEW DELHI ] on following issue:

Issue:

Whether the extended period can be invoked when demand arises due to retrospective amendment?

Facts and background:

Lloyd Tar Products (“the Assessee”) was engaged in manufacture of different kind of excisable goods. During the period from November 16, 1997 to June 1, 1998, the Assessee received the services of Goods transport operator (“GTA”) but did not pay Service tax under Reverse Charge as was required under erstwhile Rule 2(i)(d)(xvi) and (xvii) of the Service Tax Rules, 1994 (“the Service Tax Rules”) which was later struck down by the Hon’ble Supreme Court in the case of Laghu Udyog Bharati Vs. Union of India [1999 (7) TMI 1 - SUPREME COURT OF INDIA].

Thereafter, the law was amended retrospectively vide the Finance Act, 2000 and the Finance Act, 2003 and the recipient of GTA services were made liable to pay the tax from the beginning. In the light of the above amendment, Show Cause Notice was issued to the Assessee in November, 2002 which culminated into an Order passed by the Adjudicating Authority confirming the demand but dropping the penalties on observing that no suppression can be attributed to the Assessee.

The Assessee challenged the said Order before the Commissioner (Appeals), wherein the Commissioner (Appeals) relying upon the decision in the case of L. H. Sugar factories Ltd. Vs. CCE [2004 (1) TMI 111 - CESTAT, NEW DELHI]  (“L.H. Sugar case”) held that even though a person receiving taxable services of GTA are deemed to pay Service tax under Section 69 of the Finance Act, 1994 (“the Finance Act”), but liability to file return is cast on them only under Section 71A of the Finance Act and not under Section 70 thereof. Accordingly, they are not covered under Section 73 of the Finance Act and hence, not liable to pay Service tax.

Thereafter, on appeal being filed before the Hon’ble Tribunal by the Revenue, the same was rejected. Being aggrieved, the Revenue filed an appeal before the Hon’ble High Court of Chhattisgarh where the Hon’ble High Court directed the Tribunal to consider the law declared by the Hon'ble Supreme Court in the case of Gujarat Ambuja Cements Ltd. Vs. Union of India [2005 (3) TMI 492 - SUPREME COURT] (“Ambuja case”). Therefore, the matter was listed again before the Hon’ble CESTAT, Delhi.

Held:

The Hon’ble CESTAT, Delhi after observing that the matter in the present case differs from the Ambuja case, held that:

• In view of judgment in L.H. Sugar case, since recipient of GTA services were liable to file return under Section 71A of the Finance Act and Section 73 thereof, as amended by the Finance Act, 2003, did not refer to Section 71A of the Finance Act, hence, the Assessee was not covered by Section 73 of the Finance Act and the SCN is bad;
• Even otherwise, since there was no suppression on part of the Assessee and the Adjudicating Authority had itself waived penalties on that count, extended period was not invocable;
• When the SCN was issued after the retrospective amendment, no malafide can be attributed to the Assessee and the SCN is barred by limitation.

Hope the information will assist you in your Professional endeavors. In case of any query/ information, please do not hesitate to write back to us.

Thanks and Best Regards,

Bimal Jain

FCA, FCS, LLB, B.Com (Hons)

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