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TMI Blog2009 (10) TMI 207X X X X Extracts X X X X X X X X Extracts X X X X ..... t of service tax, also demanded interest under section 75, imposed penalties under each sections of 76, 77 and 78 of the Finance Act, 1994. On appeal, the Commissioner (Appeals) relying upon various decisions of the Tribunal set aside the Order-in-Original and allowed the appeal. Held that- I do not find any infirmity in the impugned order. In the facts and circumstances of the case, the impugned order is correct and legal. I do not find any merit in the Revenue’s appeal and the same is dismissed. X X X X Extracts X X X X X X X X Extracts X X X X ..... idered the submissions made by both sides and perused the records. The issue involved in this case is regarding liability to pay service tax for GTO service received from 16-7-2007 for which a show-cause notice was issued on 13-9-2004 invoking the provisions of section 73 of the Finance Act, 1994, for recovery of the amount. The findings of the Commissioner (Appeals) are as under :— "4. I have carefully gone through the records of the case and the submissions of the appellant, it is a fact on record that the demand for service tax, for the receipt of GTO service availed during the period from 16-7-1997 to 16-10-1998 was made for the first time vide show-cause notice 13-9-2004, which is beyond the extended period of limitation of 5 years sp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2005] 2 STT 282. The ratio of the Apex Court in the case of Gujarat Carbon & Industries Ltd. (supra) is reproduced : "5. The Tribunal referred to a decision in the case of L.H. Sugar Factories Ltd. v. CCE 2004 (165) ELT 161/[2007] 8 STT 295 (New Delhi - CESTAT) where under similar circumstances the show-cause notice was issued. It was held that during the relevant period section 73 takes in only the case of assessees who are liable to file return under section 70. The liability to file return is cast on the assessees only under section 71A which was introduced in the Finance Bill, 2003. Thus, during the period in question no notice could have been issued under section 73 for non-filing of return under section 70. According to the Tribunal, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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