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TMI Blog2017 (11) TMI 653X X X X Extracts X X X X X X X X Extracts X X X X ..... IONER OF C. EX., PONDICHERRY Versus TEBMA SHIPYARDS LTD. [2013 (10) TMI 1322 - MADRAS HIGH COURT], where it was held that As per the Finance Act, 2004, Section 73(1)(a) of the Finance Act was amended with effect from 10-9-2004 validating the notice issued to Goods Transport Operators Service recipients by removing the clause “the persons liable to file the returns under Section 70” from erstwhile Section 73 of the Finance Act. The very initiation of proceedings by issuance of show cause notice is bad in law. Appeal dismissed - decided against Revenue. - C.M.A. No. 2637 of 2017 - - - Dated:- 23-10-2017 - S. Manikumar And R. Suresh Kumar, JJ. For the Appellant : Mr. A. P. Srinivas JUDGMENT ( Judgement of this Court was mad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ice tax of ₹ 8,15,650/-, on the freight charges paid by them, from 16.11.1997 to 01.06.1998. The said decision has been challenged by the 2nd respondent-assessee, in Appeal No.S/103/2006, before the CESTAT, Chennai. 3. On the strength of the decision of the Tribunal in L.H.Sugar Factories Limited Vs. CCE, Meerut-II 2004 reported in 2004 (165) ELT 61 (T), Tribunal, Delhi, on 13.07.2004, the 2nd respondent-assessee has filed a refund claim. On the basis of Order-in-Revision No.1 of 2005, dated 30.11.2005, the Deputy Commissioner has rejected the claim. Aggrieved by the same, the 2nd respondent-assessee has preferred an appeal and the Commissioner (Appeals), vide Order-in-Appeal No.75 of 2006, dated 05.09.2006, has set aside the order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t paid within the period of two weeks from 17.11.2003. I note that the question whether Section 73 could be invoked to recover such tax was not examined in Gujarat Ambuja Cements case. This question was examined by a coordinate Bench of the apex Court in the later case of L.H.Sugar Factories Ltd. Therefore, the apex Court's decision in L.H.Sugar Factories (supra) would govern the instant case and accordingly, as rightly held by the Commissioner (Appeals), the assessee had no liability to pay service tax under Section 73 of the Finance Act, 1994. The contra decision taken by the Commissioner (Revisional Authority) is set aside and the assessee's appeal is allowed. 4. When the assessee's appeal stands allowed, they are entitl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rms of the amended provisions of Finance Act, 2000 2003 and the constitutionality of such amendments of the Finance Act, was upheld by the Apex Court in the case of Gujarat Ambuja Cement Ltd., (supra) and with reference to various case laws cited above? Heard Mr.A.P.Srinivas, learned counsel appearing for the appellant and perused the materials available on record. 6. In The Commissioner of Central Excise, Puducherry Commissionerate, Pondicherry v. TEbma Shipyards Ltd., [C.M.A.Nos.3186 of 2008, 1066 of 2010, 3558 of 2008 and 660 of 2010, dated 24.10.2013], one of the orders challenged by the Commissioner of Central Excise, relates to the Final Order No.886 of 2008, dated 19.08.2008, on the file of the CESTAT, Chennai, in the matte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Finance Bill, 2003 received the assent of the President viz., on 14.05.2003. Therefore, the last date for filing the return for the assessees for utilising the Goods Transport Operators viz., the service recipients under Section 71A of the Finance Act, 1994 falls on 12.11.2003. 8. As per the Finance Act, 2004, Section 73(1)(a) of the Finance Act was amended with effect from 10.09.2004 validating the notice issued to Goods Transport Operators Service recipients by removing the clause the persons liable to file the returns under Section 70 from erstwhile Section 73 of the Finance Act. Therefore, the plea of the Department is that the show cause notices issued between 10.09.2004 and 13.11.2004 would be covered under Section 73(a) ..... X X X X Extracts X X X X X X X X Extracts X X X X
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