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TMI Blog2013 (8) TMI 21X X X X Extracts X X X X X X X X Extracts X X X X ..... pose to file counter affidavit to the delay condonation application. 2. We find that the delay of 19 days has been sufficiently explained. The delay is accordingly condoned. The appeal will be given regular number . 3. We have heard Shri R.C. Shukla, learned counsel appearing for the department. Shri Nishant Misra and Shri Aditya Bhattacharya appear for the respondent. 4. The Central Excise Department has preferred the appeal on the following substantial question of law:- "(i) Whether non-addition of Section 71-A in the Finance Act, 1994 and also in its non insertion in erstwhile Section 73 of the Finance Act, 1994 invalidates the substantial liability of service tax based on the show cause notice dated 11.10.2002 issued for realization ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s, who had not paid tax during the said period as per Rule 2 (1) (d). The dispute relating to the period when the transport service recipients were not required to file any return under section 70 nor they were required to disclose any information because they were not assessees within the meaning of the word under Section 70 and 71. 8. Section 73 of the Finance Act as it stood prior to its amendment on 10.9.2004 provided as follows:- "73. Value of Taxable Services Escaping Assessment.- If ? (a) the Assistant Commissioner of Central Excise or, as the case may be, the Deputy Commissioner of Central Excise has reason to believe that by reason of omission or failure on the part of the assessee, to make a return under section 70 for any pres ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f 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." 10. The Tribunal was of the opinion supported by the decisions of Delhi High Court in L.H. Sugar Factories Ltd vs. CCE 2004 (165) E.L.T. 161 (Tri. Del) which was affirmed by the Apex Court in 2005 (187) ELT 5 (SC) in favour of the service recipie ..... X X X X Extracts X X X X X X X X Extracts X X X X
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