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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 ..... me under Section 71A is not brought under the net of Section 73 and thus a show cause notice invoking Section 73 is not maintainable - It is not denied that the respondent was not required to file the return nor any show cause notice or demand was issued or was outstanding when the amendment in the Act came into force - Following decision of Commissioner of Central Excise Vadodara-I vs. Gujarat Carbon & Industries Ltd [2008 (8) TMI 4 - SUPREME COURT] - Decided against Revenue. - Central Excise Appeal Defective No.-13 of 2013 - - - Dated:- 23-7-2013 - Hon'ble Sunil Ambwani And Hon'ble Surya Prakash Kesarwani,JJ. For the Appellant : Ramesh Chandra Shukla For the Respondent : Nishant Misra ORDER 1. This Central Excise App ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rule 2 (1) (d) (xii) of the Service Tax Rules. The show cause notice was issued on 11.10.2002. The Commissioner confirmed the service tax along with interest and imposed penalty under Section 76 of Finance Act equal to Rs. 200/- per day from the date of default to date of payment, penalty under Section 77 and Section 75-A. 6. M/s Hindalco Industries Ltd filed an appeal challenging the tax, interest and penalties. The revenue also filed an appeal on the ground that the penalty imposed under Section 76 should have been at the rate of 2% of the tax for every month instead of Rs. 200/- per day imposed by the adjudicating officer. 7. The Tribunal found that the show cause notice in this case was issued after the retrospective amendment made ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s, in consequence of information in his possession, reason to believe that the value of any taxable service assessable in any prescribed period has escaped assessment or has been under assessed, or any sum has erroneously been refunded, he may, in cases falling under clause (a), at any time within five years, and in cases falling under clause (b), at any time within six months from the date for filing the return, serve on the assessee a notice and proceed to assess or reassess the value of taxable service. Explanation : Where the services for the notice is stayed by an order of a Court, the period of such stay shall be excluded in computing aforesaid period of five years or six months, as the case may be." 9. The Finance Act 1994 was am ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at Carbon Industries Ltd 2008 (12) STR 3 (SC) in which it was held relying upon Commissioner of Central Excise, Meerut-II v. L.H. Sugar Factories Ltd and others 2005 (13) SCC 245 that the amended 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 appellants only under Section 71A, which was introduced in the Finance Bill, 2003. The class of persons, who come under Section 71A is not brought under the net of Section 73 and thus a show cause notice invoking Section 73 is not maintainable. In Commissioner of Central Excise, Meerut-II v. L.H. Sugar Factories Ltd and ors 2005 (13) SCC 245) the conclusions drawn by the Tribunal were upheld. In the said case ..... X X X X Extracts X X X X X X X X Extracts X X X X
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