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TMI Blog2011 (2) TMI 1366X X X X Extracts X X X X X X X X Extracts X X X X ..... file any service tax return. The department issued show-cause notices, in December 2001 in the case of M/s. Adinath SSK Ltd. and in 2002 in the case of other assessees, demanding service tax on the freight paid by them for the above transportation of materials. Recipients of GTO service were liable to pay service tax under the proviso to sub-section (1) of Section 68 of the Finance Act, 1994 for the period from 16.7.1997 to 2.6.1998. Hence the above demand of service tax. The show-cause notices also demanded interest on tax and proposed penalties. These proposals were contested. In adjudication of the dispute, the original authority confirmed the demands and, in most cases, imposed penalties. Aggrieved by the orders-in-original, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ELT 33 (SC). According to the learned SDR, the issue involved in the instant cases can be best resolved by following Gujarat Ambuja Cements Ltd. (supra) rather than L.H. Sugar Factories (supra). Both sides have extensively referred to the relevant provisions of the Finance Act, 1994 and the decisions rendered by this Tribunal from time to time by considering the amendments to such provisions. 4. In the case of L.H. Sugar Factories (supra), this Tribunal had occasion to consider challenge against a similar demand of service tax for identical period (16.11.1997 to 1.6.1998). The assessee, in that case, had availed GTO service during the said period. They did not pay service tax on the freight incurred by them. The question arose wheth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the various amendments to the Act in subsequent years. Having considered the relevant provisions of the Act, the Tribunal has, inter alia, recorded the following conclusion. The above would show that even the amended Section 73 takes in only the case of assessees who are liable to file return under Section 70. Admittedly, the liability to file return is cast on the appellants only under Section 71A. The class of persons who come under Section 71A is not brought under the net of Section 73. The above being the position show cause notices issued to the appellants invoking Section 73 are not maintainable. 3. We entirely agree with the conclusion arrived at by the Tribunal. We find no merit in these appeals and the same are accordin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es would arise only if the dues were not paid within the aforesaid period of two weeks. The learned SDR has construed these observations of the apex court to mean that, where a person is liable to pay service tax under the proviso to Section 68(1) and to file returns under Section 71A of the Finance Act, 1994, he has to do so within the extended period granted by the court irrespective of the provisions of Section 73 of the Act. We have found it difficult to agree with the SDR. As we have already indicated, the substantive issue before the apex court in Gujarat Ambuja Cements case was whether certain provisions of the Finance Act, 2000 and the Finance Act, 2003 were constitutionally valid or not. The Court s observations in passing can ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the case of L.H. Sugar Factories (where the show-cause notices were issued in the year 2002) as in the instant cases (where the show-cause notices were, admittedly, issued in December 2001 or on various dates in 2002). Before 10.9.2004, Section 73 of the Finance Act could be invoked for recovery of service tax from a person who was liable to file returns under Section 70 of the Act but omitted/failed to do so. Section 71A, the provision under which recipients of GTO service, like the present assessees, were to file returns for purposes of assessment under Section 71, was not a part of Section 73 of the Act prior to 10.9.2004. Apparently, this distinction was not taken note of in the cases of Mangalam Cements and Agauta Sugar Chemica ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 73, as it stood prior to 10.9.2004, should be liberally construed so as to achieve the legislative purpose. In this connection, he has relied on CIT, Thiruvananthapuram vs. Baby Marine Exports 2007 (211) ELT 12 (SC), Ponds India Ltd. vs. CTT, Lucknow 2008 (227) ELT 497 (SC) and Directorate of Enforcement vs. Deepak Mahajan 1994 (70) ELT 12 (SC) (paragraphs 24 to 27). It has been argued that courts and tribunals must, if necessary, supplement the written word so as to give force and life to the intention of the legislature. The learned SDR means to say that Section 71A should also be read with Section 70 in the text of Section 73 of the Finance Act, 1994 in order to give effect to the legislative intent. If this suggestion is accept ..... X X X X Extracts X X X X X X X X Extracts X X X X
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