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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 ..... w decisions of the Courts including the Apex Court and also a matter on which Government of India made certain retrospective legislations. In brief the issue involved in these cases is whether the retrospective amendments made were good enough for collecting the tax liability from the service receivers who did not file any returns and did not pay the tax. Before we examine the relevant decisions and also the retrospective amendment in law it is necessary to summarize the facts of the cases at hand. This is done in the following table. Appeal No Name of Assessee Period of demand Amount of tax demanded Date of the SCN ST/32/07 Augatha Sugar and Chemicals 16-11-97 to 02-06-98 6,75,545 08-11-04 ST/88/07 Jaipur Glass and Potteries 16-11-97 to 02-06-98 32,512 10-11-04 ST/532/06 Guljag Industries 16-11-97 to 02-06-98 10,279 08-11-04 ST/67/06 Nova Iron and Steel 16-11-97 to 02-06-98 20,52,244 SCN dated 01-10-01 and Corrigendum. Dated 01-11-04 4. The major decision to the effect that Rule 2 (d) (xvii) was ultra virus was in the case of Laghu Udyog Bharati v. Union of India [2006] 4 STT 322 (SC). During the said period there were some service receivers who had paid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re the service of the notice is stayed by an order of a court, the period of such stay shall be excluded in computing the aforesaid period of five years or six months, as the case may be." 7. In the meanwhile legislature amended Finance Act, 1994 again by Finance Act, 2003 to insert a section 71A retrospectively for the period 16th day of July, 1997 and ending with the 16th day of October, 1998, reading as under: "71A. Filing of return by certain customers.- Notwithstanding anything contained in the provisions of sections 69 and 70, the provisions thereof shall not apply to a person referred to in the proviso to sub-section (1) of section 68 for the filing of return in respect of service tax for the respective period and service specified therein and such person shall furnish return to the Central Excise Officer within six months from the day on which the Finance Bill, 2003 receives the assent of the President in the prescribed manner on the basis of the self assessment of the service tax and the provisions of section 71 shall apply accordingly.';" 8. Still there appeared to be difficulty in recovering the amounts not paid during the said period because section 73 of Finance Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stand that the tax was payable during November 16, 1997 to June 1, 1998 when in fact no tax could be successfully demanded and recovered from them earlier in view of Hon'ble Supreme Court's decisions in the case of Laghu Udyog Bharati (supra) and L.H. Sugar (supra). Having laid a successful challenge against the demand during the earlier period, now they cannot turn around and say that the department should have raised the demand during that period itself. Such arguments are in the nature of 'Heads I win, tails you lose' logic designed to deprive the public revenue its legitimate dues even after the levy has been declared valid by the highest Court of the land. (iii) As rightly pointed out by the ld D.R, in the case of S.S. Gadgil (supra), time limit was sought to be extended after the expiry of the prescribed period and in that context the said judgment was delivered by the Hon'ble Supreme Court, but in the instant cases, a special time limit has been prescribed under Section 71A which was inserted by the Finance Act, 2003 to operationalise the retrospectively validated levy and hence the ratio of S.S. Gadgil (supra) is not applicable to the present cases. (iv) The d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iled a return after getting himself registered. More particularly, when one considers the language employed in the Proviso below sub-section (1) of Section 68 and the provisions of Section 71A of the Finance Act, 1994, it is not possible to state that the language of the Statute is so clear that any default can be fastened on the respondent-assessee." 14. The argument of the Counsels is that the matter has been decided by two High Courts in favour of assessees which are directly opposite to the decision given by the Larger Bench and since the Larger Bench has not considered the above decisions of the High Courts, the final order should be passed based on the decisions of the High Courts and not based on the decision of the Larger Bench of Tribunal. 15. We are of the view that when an issue is decided by the High Courts and such decisions were not before the Larger Bench of Tribunal when it took the decision on the same issue, we should respectfully follow the order of the High Courts keeping in view the hierarchy of Courts and Tribunal. So we follow the decisions of the High Courts as cited above and hold that the demands issued after in 2004 or later in respect of the short levi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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