9911796707
TMI Blog2015 (10) TMI 1304X X X X Extracts X X X X X X X X Extracts X X X X ..... tax paid by the appellant is in accordance with law and therefore the demand for service tax made by Revenue has to be upheld. Consequently the refund claim filed by the appellant and the rejection of the same also has to be upheld. - Decided against the assessee. Demand of Interest - Once service tax liability is upheld, interest liability is also upheld. Imposition of Penalty – Revenue contended that imposition of penalty is perfectly in order and needs no interference – Held That:- Once the writ petition was dismissed; assessee paid the entire tax amount in the same month – No delay on part of assessee – Penalties are set aside. - ST/30/2008-SM, ST/84/2008-SM - Final Order No. 20822-20823 / 2015 - Dated:- 19-3-2015 - SHRI B.S.V.MURTHY, TECHNICAL MEMBER For the Petitioner : Ms. Rukmani Menon, Advocate For the Respondent : Shri N. Jagdish, Superintendent(AR) ORDER Per : B.S.V. MURTHY The appellant is a manufacturer of cement and clinker. They are liable to pay service tax on the GTA service received by them as a receiver of service. the issues involved in both the appeals are linked with each other and therefore both the appeals are considered ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... returns before 28/11/2003 and make the payment of service tax. 6. Even though the matter came up to be finally decided upholding the retrospective amendment, in respect of the petitions filed in 2005, that decision is not relevant as far as the recovery of the tax and proceedings for recovery of the tax are concerned which were already permitted by the Hon ble Supreme Court earlier in November 2003. 7. In the case of the present appellant, when the retrospective amendment was carried out in the year 2000, the appellant filed a writ petition before the Hon ble High Court of Andhra Pradesh No.4184/2001 challenging the provisions of Section 116 and 117 of Finance Act, 2000. After the letter was received from the Range Superintendent dt. 11/11/2003 and 11/12/2003, the appellant filed another Misc. application WPMP No.2809 of 2004. Honble High Court of Andhra Pradesh vide order dt. 04/02/2004, ordered the following:- Petition under Section 151 of CPC praying the High Court to grant stay of further proceedings pursuant to the notice of the proposed 4th Respondent dated 11-11-2003, pending W.P.No.4184/2001 on the file of the High Court. The Petition coming on for hearing u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... i. Whether penalties imposed can be sustained or not and whether interest is payable by the assessee or not. 12. The learned counsel on behalf of the appellant relied upon the decision of the Hon ble Supreme Court in the case of L.H. Sugar Factories Ltd. upholding the decision of the Tribunal reported in 2004(165) ELT 161 (Tri. Del.)]. In this case, the Tribunal had taken the view that no show-cause notice could have been issued since the relevant provisions did not cover and did not require the concerned assessees to file returns. However on going through the decision, I find that in the case of L.H. Sugar Factories Ltd., the period was prior to the amendments carried out in the year 2003 to the Finance Act and the defects which were noticed and were considered for taking a view in favour of the assessees in the case of L.H. Sugar Factories Ltd., were made good in the Finance Act, 2003 which came to be subsequently held valid by the Hon ble Supreme Court. Under the circumstances, the decision of the Hon ble Supreme Court in the case of L.H. Sugar Factories Ltd. would not be applicable to the present case. At this stage, it would be appropriate to take note of the fact that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppellant was seeking stay of further proceedings pursuant to the letter dt. 11/11/2003. I agree with the submission that further proceedings pursuant to the letter dt. 11/11/2003 would be issue of show-cause notice unless the assessee files the return and pays the tax which they did not do. In the absence of any filing the return and payment of tax, show-cause notice could not have been issued because there was a stay of all further proceedings. Therefore I agree with the submission of the learned AR that the stand taken by the Revenue that during the pendency of writ petition filed by the appellant, show-cause notice could not have been issued. According to the provisions of Section 73(2b) Explanation where 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 one year or five years, as the case may be. In this case, the stay was granted on 04/02/2004, the final decision rejecting the writ petition was rendered on 09/08/2005. If we calculate the period during which the writ petition was pending and there was a stay order, the show-cause notice issued by the Revenue has to be considered as having b ..... X X X X Extracts X X X X X X X X Extracts X X X X
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