2013 (8) TMI 802 - AT - Service Tax

Demand after 2004 on GTA servcies for the period before legislative measures commencing from the Finance Act 2000 - Held that - No provision have however been brought to our notice which enables the adjudicating or an appellate authority to review the decision of this Tribunal dated 2.11.2005 whereby the respondent/assessee s appeal against the order of adjudication dated 28.2.2003 as confirmed by the appellate order dated 3.3.2005 was reversed and the assessees immunity to service tax liability, declared. As this Tribunal decision dated 2.11.2005 (in the assessee s case) having attained finality no adjudicating or appellate authority could ignore the order dated 2.11.2005. The appellate authority by the order impugned (by Revenue) in this appeal concluded that the finality of this Tribunal s order dated 2.11.2005 is not liable to be ignored nor a fresh order of assessment passed contrary thereto. The conclusion by the adjudicating authority is impeccable and not liable to be interfered with. A substantially similar issue fell for consideration in Kisan Sahkari Chini Mills Vs. CST 2013 (5) TMI 57 - CESTAT, NEW DELHI , wherein following the judgment of the Gujarat High Court in CCE Vs. Eimco Elecon Ltd. 2010 (7) TMI 477 - GUJARAT HIGH COURT , it was held that the demand issued on or after 2004 or latter in respect of short levy, the assessee before us is not maintainable. - Decided in favor of assessee.

Summary

Issues:
1. Appeal against appellate order allowing respondent's appeal and reversing demand of tax, interest, and penalty.
2. Validity of Tribunal's order dated 2.11.2005.
3. Review of Tribunal's decision by adjudicating or appellate authority.
4. Finality of Tribunal's order dated 2.11.2005.
5. Interference with the conclusion of the appellate authority.
6. Similar issue in Kisan Sahkari Chini Mills Vs. CST.
7. Merit of the appeal and dismissal without costs.

Analysis:

1. The appeal was filed by the Revenue against the appellate order that allowed the respondent's appeal, reversing the demand of tax, interest, and penalty imposed by the Additional Commissioner. The chronology of events included a Show Cause Notice issued to the assessee for failure to remit service tax, which led to subsequent adjudication and appeals.

2. The Tribunal's order dated 2.11.2005 in the respondent's case, following a Supreme Court judgment, had declared the assessee's immunity to service tax liability. This order had attained finality and could not be ignored by any adjudicating or appellate authority.

3. There was no provision enabling the authorities to review the Tribunal's decision dated 2.11.2005. The finality of this order could not be disregarded, and no fresh assessment contrary to it could be passed.

4. The appellate authority in the impugned order correctly acknowledged the finality of the Tribunal's decision dated 2.11.2005 and upheld the immunity declared for the service tax liability of the assessee.

5. The conclusion reached by the adjudicating authority was deemed impeccable and not subject to interference. A similar issue had been considered in a previous judgment, supporting the finality of the Tribunal's decision in the assessee's case.

6. Referring to the judgment in Kisan Sahkari Chini Mills Vs. CST, it was established that demands issued after a certain period were not maintainable, aligning with the finality of the Tribunal's earlier decision in the present assessee's case.

7. Consequently, the appeal was found to lack merit and was dismissed without costs, considering the circumstances and the established finality of the Tribunal's previous decision in the case.