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TMI Blog2015 (2) TMI 524X X X X Extracts X X X X X X X X Extracts X X X X ..... ated 16.04.2012 in which the demand of ₹ 29,786/- has been confirmed along with interest and penalties under Sections 76 77 of the Finance Act, 1994. 2. The facts are that the appellant received services of goods Transport Operators during the period 16.11.1997 to 01.06.1998 and paid gross amount of ₹ 5,95,714/- as freight charges to the goods Transport Operators. The demand of Service Tax on this amount was confirmed as payable under Rule 2(1)(d)(xii) of the Service Tax Rules by invoking extended period under Section 73(1) of the Act. Initially the show-cause notice demanding duty was issued on 15.11.2002. But, the valuation of Service Tax under said Rule 2 (1)(d)(xii) was struck down as ultra vires by the Hon'ble Supr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... - 2010 (19) STR 849 (Tri-LB) . He also emphasised that the Hon'ble High Court judgments and the Tribunal judgements cited by the learned Counsel relate to cases where show-cause notices were issued after 16/09/2004 when Section 73 was amended whereas in the present case the first show-cause notice was issued on 15.11.2002. 6. I have carefully considered the rival contentions. It will be useful to briefly go into the history of the levy of Service Tax on Goods Transport Operators. As mentioned in the facts in paragraphs above, the Rule 2(1) (d) (17) of the Service Tax Rules provided for demanding duty from service receivers. This was held to be ultra vires by the Hon'ble Supreme Court in the case of Laghu Udyog Bharati vs. Union o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ills vs. UOI 2011 (24) STR 283 (Ker) (ii) CCE vs. Eimco Elecon Ltd. 2010 (20) STR 603 (Guj) (iii) CCE vs. Hiran Aluminium Ltd. - 17 September 2010 The Hon'ble Kerala High Court in the case of Precot Mills Ltd. vs. Union of India - 2011 (24) STR 283 (Ker.) held that- But, counsel for the petitioner would contend that as far as the second issue is concerned, the Supreme Court has in J.K. Cotton Spinning and Weaving Mills Ltd. and Another v. Union of India and Others, 1987 (32) E.L.T. 234 has held that even if a provision is amended with retrospective effect, the Department can proceed with the demand only if the matter was kept alive at the time when the original provisions was in force. Otherwise, no action can be initiated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... introduced w.e.f. 16.07.1997) appearing in Section 73 of the Finance Act, 1994 no levy of any short duty or non-levy could have been demanded. 4. Thus, it is apparent that till the point of time Section 73 of the Finance Act, 1994 came to be substituted w.e.f. 10.09.2004 provisions of the said section could not be made applicable despite retrospective amendment in Sections 68 and 71A of the Finance Act, 1994. In these circumstances, admittedly, the assessee could not be faulted with for not having filed 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 st ..... X X X X Extracts X X X X X X X X Extracts X X X X
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