9911796707
TMI Blog2012 (7) TMI 24X X X X Extracts X X X X X X X X Extracts X X X X ..... cause notice on 22.04.2004. In the impugned order, the Commissioner (Appeals) has taken a view that the demand is not sustainable since the show cause notice was issued under Section 73 of Finance Act, 1994 and on the day on which show cause notice was issued, the Section 73 was not applicable in respect of short levy arising in respect of the ST - 3 returns filed under Section 71A. He relied upon the decision of the Tribunal in the case of LH Sugars Factories Ltd. v. CCE [2007] 8 STT 295 (New Delhi - CESTAT) Revenue is in appeal against this decision. 2. Learned DR on behalf of Revenue submitted that the decision of the Tribunal was confirmed by the Hon'ble Supreme Court but it was a short order. Subsequently the matter was argued at leng ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ions of the Finance Act as it stood in the year 1994 and thereafter as it stood after the various amendments to the Act in subsequent years. Having considered the relevant provisions of the Act, the Tribunal has, inter alia, recorded the following conclusion. 'The above would show that even the amended Section 73 taken in only the case of assessees who are liable to file return under Section 70. Admittedly, the liability to file return is case on the appellants only under Section 71A. The class of persons who come under Section 71A is not brought under the net of Section 73. The above being the position show cause notices issued to the appellants invoking Section 73 are not maintainable.' We entirely agree with the conclusion arrived at b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of short levy and non-levy of service tax from 10.09.2004. This identical question was raised before the Supreme Court in both the cases as cited. Hon'ble Supreme Court has clearly held that if provisions of section 71A are not incorporated under section 73, no demand can be raised for the violation of the same, the liability does not arise and demands cannot be sustained. We find that the provisions of Section 73 of the Finance Act, 1994 were amended from 10.09.2004 by incorporating violation of Section 71A, for issuance of show cause notice. In the case in hand, it is seen that show cause notice has been issued on 19.05.2004, i.e., prior to amendment of Section 73. In view of the foregoing judicial pronouncements, in the facts and circu ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
