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TMI Blog2012 (11) TMI 740X X X X Extracts X X X X X X X X Extracts X X X X ..... s in dispute in case filed by assessees are not maintainable - Consequently, appeals filed by the assessees are allowed. In this case Notice was issued after retrospective amendments made by Finance Act, 2001 but before the retrospective amendments by Finance Act, 2003 and Finance Act, 2004. But the question whether such notices issued after amendment made by Finance Act, 2001 was valid for recovery of taxes short paid during 16-11-97 to 02-06-98 was the issue before the Tribunal in the case of L.H. Sugar Factories Ltd (2004 (1) TMI 111 - CESTAT, NEW DELHI) and the Tribunal answered the question in the negative and the decision has been affirmed by the Hon. Apex Court. Further after amendment made by Finance Act 2004, Revenue issued a corrigendum to the notice dated 01-11-04 quoting the amendments made in Finance Act, 2004. This has to be essentially understood as a notice issued on 01-11-04 when the corrigendum was issued. The ratio of the decisions of the High Courts quoted in para 13 above is to the effect such notices issued in 2004 also cannot be enforced. Therefore in this case also the decision goes in favour of the assessee. So this appeal filed by Revenue is rejected. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... some others who did not file any return or pay service tax. The assessees involved in the present cases are of the latter category. 5. To overcome the defect pointed out by the Apex Court in the case of Laghu Udyog Bharati ( Supra ), The Parliament made retrospective amendment by section 117 of the Finance Act, 2000. This amendment validated the action taken under the said rule not withstanding any judgment, decree or order of any court, Tribunal or any authority. Now the question arose whether this amendment was good enough to issue demands under section 73 of Finance Act, 1994 on persons who had not paid tax during the said period as per Rule 2 (d) (xvii). The dispute raised was that during the relevant period, such service receivers were not required to file any return under Section 70 and they were not required to disclose any information because they were not liable to the assessee under Section 71. 6. Section 73 of the Finance Act as it stood prior to the amendment made on 10-09-2004 to read as under: "73. Value of taxable services escaping assessment, - If - ( a ) the Assistant Commissioner of Central Excise or, as the case may be, the Deputy Commissioner o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssue of demand short levy did not include returns filed in the new section 71A inserted as indicated above. The question whether this amendment enabled issue of notices for recovery of taxes not paid in the impugned circumstances under the provisions of section 73 of the Act as it stood prior to 10-09-2004 was initially decided by Tribunal in the case of L.H. Sugar Factories Ltd. v. CCE [2007] 8 STT 295 (New Delhi-CESTAT) which was affirmed by the Apex Court as CCE v. L.H. Sugar Factories Ltd. [2005] 2 STT 282 (SC) in favour of the service recipients. 9. After amendment by Finance Act, 2004, Section 73 was made applicable without reference to any specific section under which return was to be filed as was the case earlier. So the issue had to be decided with reference to the relevant date as defined in sub-section (6) of section 73 as re-produced above. 10. Because there were conflicting decisions of the co-ordinate Benches on the issue whether recovery provisions would apply to the impugned short levies for which Show Cause Notices were issued after 10-09-2004 the matter was referred to Larger Bench of the Tribunal in Aganta Sugar Chemicals v. CCE ] [Appeal Nos ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iv ) The decisions given in R.K. Marbles ( supra ) and in B.P.L. Engineering ( supra ) do not lay down the correct proposition of law having been rendered by wrong application of the decision in L.H. Sugar and hence those have no precedential value. 19. As the issue involved in these appeals relate to demand of tax and hence to determination of the rate of tax applicable, after answering the reference as above, we direct the Registry to list the appeals before the concerned Division Bench for final orders." 12. The Counsels for assessees point out that notwithstanding the decision of the Larger Bench of the Tribunal as discussed above, various High Courts have decided that demands issued in 2004 for liability that arose for the period the 16-11-97 to 02-06- 98 is barred by limitation. They rely on the following decisions in this regard: ( i ) Precot Mills Ltd. v. Union of India [2011] 34 STT 162/[2012] 17 taxmann.com 52 (Ker.) ( ii ) CCE C v. Eimco Elecon Ltd . [Tax Appeal No. 1365 of 2009, dated 1-7-2010] ( iii ) CCE v. Hiren Aluminium Ltd. [Tax Appeal No. 2459 of 2009, dated 17-9-2010] 13. For the sake of convenience paras 3 and 4 of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2004 or later in respect of the short levies in dispute in the three cases filed by assessees are not maintainable. 16. Consequently the three appeals filed by the assessees are allowed. 17 . We would like to examine the case of Nova Iron and Steel separately. In this case, unlike in the other case a demand was issued as early as 01-10-2001. The department had been pursuing with the Respondents to furnish the information regarding value of service received by them. They asked for such information vide letters dated 10-01-2001, 29-01-2001, and 14-03-2001. They received information vide letter dated 23-03-01 received by the department on 23-04-01 and SCN was issued on 01-10-01. Significantly the Show Cause Notice invoked sections 66 and 68 (and not section 73) of the Finance Act for demanding the tax short paid. Para 17 of the SCN is relevant. Section 66 creates the charge for service tax and section 68 prescribes the procedure for payment and these are not sections for issue of notice which was short paid. The case of the assessees is that at the time when they received the tax these sections were not applicable to them. So there was no short payment at the relevant ti ..... X X X X Extracts X X X X X X X X Extracts X X X X
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