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TMI Blog2009 (2) TMI 44X X X X Extracts X X X X X X X X Extracts X X X X ..... ioned the refund claims of Rs.2,70,503/- and Rs.8,84,499/- respectively to M/s. Ballarpur Industries Ltd.(hereinafter in short referred to as BIL). 2. The Commissioner(Appeals) has sanctioned the refunds by setting aside the Orders-in-Original both dated 10/11.5.2005 passed by the Assistant Commissioner of Central Excise Division, Chandrapur by which the Assistant Commissioner had rejected the refund claims. The following is the extract of the orders passed by the Commissioner (Appeals). "The matter is no more res integra. The judgement of CESTAT in L.H.Sugar Factories Ltd. Vs. Other 2004 (165) ELT 161(Tri.-Del) holding that even in amended provisions of Service Tax in case of Goods Transport Operators Services, the service receiver is not liable to pay Service Tax up to the period 01.06.1998, is upheld by the apex court in Civil appeal No.4426-4431 of 2004 in their judgement dated 27.07.2005, 2005 (187) ELT 5 (SC). The operative portion of the judgement is reproduced below:- We have heard counsel for the parties. 2. Learned counsel for the parties have drawn our notice to the relevant provisions of the Finance Act as it stood in the year 1994 and thereafter as it s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessment, the service tax paid by BIL on the basis of self-assessment was to be treated as tax assessed and paid. It was argued that since there was no demand made by issuing any show cause notice to BIL, the question of applicability of Section 73 did not arise and the decision of CESTAT in L.H.Sugar Factories Ltd. as upheld by the Supreme Court was not applicable to the facts of the present case. He pointed out that the provisions of the Validating Acts were upheld by Hon'ble Supreme Court in Gujarat Ambuja Cements Ltd. vs. Union of India reported in 2005 (182) ELT 33 (SC) and, therefore, the protest under which the tax was paid under self-assessment did not survive. The learned JDR also submitted that in the instant case, neither the show cause notice was issued under Section 73 nor the said Section was invoked in the letter dated 29.03.2004 issued by the Assistant Commissioner of Central Excise, Chandrapur Division. He also relied upon the decision of the Tribunal in the case of J.K. Industries Ltd. Vs. Commissioner of Central Excise, Indore reported in 2006 (03) STR 14 (Tri.-Del) for the proposition that the service tax paid on the basis of self-assessment as per stat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5 (182) ELT 33 (SC) has upheld the constitutional validity of Section 116 and 117 of the Finance Act, 2000 and Section 158 of the Finance Act, 2003. Section 116 and 117 of the Finance Act, 2000 and Section 158 of the Finance Act, 2003 sought to overcome the Judgement of the Supreme Court in the case of Laghu Udyog Bharti Vs. Union of India reported in 1999 (112) ELT 365 (SC) striking down Rules 2(1) (d) (xii) and (xvii) of the Service Tax Rules 1994 (as amended in 1997) as ultra vires of the Act. The Supreme Court in Gujarat Ambuja Cements Ltd. (Supra) held that a legislature was competent to remove infirmities retrospectively and make imposition of tax declared invalid, valid. It was held that the law must be taken as having always been as was now brought about by the Finance Act, 2000 and that the statutory foundation for the decision in Laghu Udyog Bharti was replaced and the decision has thereby ceased to be relevant for the purpose of construing the present provisions. 8. At the outset, it is to be noted that it is very clear that the obligation to pay tax arising under the amended provision on the part of BIL, who were the recipient of services in question, was ne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pellant when specific provision of Section 71A was made in the context of the persons like the appellant for filing of the return and period within which the return was to be furnished was also provided. The contention that the appellant was not liable to pay the service tax since the recovery would have been time barred on the basis of the deemed liability having been arisen earlier on the expiry of the relevant period in 1998, is , therefore, wholly misconceived. The return filed by the appellant under Section 71A on the basis of the self-assessment could have been verified under Section 71 by the concerned officer in view of the specific provision made in Section 71A to the effect that Section 71 shall apply to such return. However, even when it was not taken up for verification, it cannot be said that the service tax paid on the basis of self-assessment was not tax assessed. Since the service tax was validly paid under the liability arising under the amended provisions, particularly under Section 71A requiring the appellant to file such return, the appellants are not entitled to the refund. There was no question of issuance of any show cause notice under Section 73 for recovery ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l Excise vs. Hira Cement reported in 2006 (194) ELT 257 (SC) has held that non filing of an appeal against an order in any event would not be a ground for refusing to consider the mater on its merit. When public interest is involved in interpretation of law, the court is entitled to go into the question. The Tribunal in the case of Ford India Pvt. Ltd. vs. Commissioner of Customs, Chennai reported in 2008 (228) STR 71 (Tri-Chennai) has held that res judicata is not applicable in taxation matter, when the matter involves public interest. It further observed that if regardless of the Revenue's legitimate claim arising out of strict interpretation of exemption notification, the present appeals are allowed solely on the ground that an order in favour of the assessee on similar set of facts exists and Revenue has not filed appeal against it, the public exchequer will be deprived of substantial revenue. It was held that the appeals are to be disposed of on merits. 12. The Commissioner (Appeals), while allowing the appeals filed by BIL, has relied upon the decision of the Tribunal in the case of L.H. Sugar Factories Ltd. [2004 (165) ELT 161 (Tri.-Del.)] as upheld by the Supr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . (supra) that the show cause notice was issued in that case in the year 2002 and it is in that context the Tribunal concluded in Para 9 that the show cause notice issued to those appellants was not sustainable because under the provisions of section 73, as it stood on the date of issue of the show cause notice and also under the provisions as amended by Finance Act, 2003 were not sustainable. Affirmation of that decision by Hon'ble the Supreme Court by order dated 27.7.2005 cannot be construed as nullifying the effect of the ratio of the decision of the Apex Court in Gujarat Ambuja Cement Ltd., (supra), in which it was categorically held, in the context of the said provisions, that the law must be taken as having always been as is now brought about by the Finance Act, 2000, and that the statutory foundation for the decision in Laghu Udyog Bharati (which was followed in L.H. Sugar Factories Ltd. by the Tribunal) had been replaced and the decision has thereby ceased to be relevant for the purposes of construing the amended provisions. 16. In view of the clear ratio of the decision of the Hon'ble Supreme Court in Gujarat Ambuja Cement Ltd. (supra), which was followed by this Tribun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .04, prescribed under Rule 7A of the said Rules and Rs.8,57,986/- vide TR6 challan No.01/04-05/ST dt.26.04.04 as stated in the return of Service Tax in form ST-3B filed by BIL on 27.04.04. An amount of Rs.26,513/- vide TR6 challan No.003/04-05/ST dt.27.04.04 was paid on account of service tax on the services of C F agents availed by BIL, during the period from 16.07.1997 to 16.10.1998. 15. The BIL have filed the ST-3B return on 27.4.2004. They are, therefore, liable to pay the interest under Section 75 of the Act for the late payment of service tax for the period from 13.11.2003 to 26.4.2004. 16. In the light of the above discussions, I hold that BIL are not entitled to the refund of Rs.2,70,503/- and Rs.8,84,499/- as service tax has been validly paid by them. Appeal No.ST/04/06 and ST/05/06 filed by the Revenue are allowed. The impugned orders passed by the Commissioner (Appeals) are set aside. The Orders-in-Original both dated 10/11.5.2005 passed by the Assistant Commissioner are restored. 17. Since it has been held that service tax has been validly paid by BIL, it follows that they are liable to pay the interest of Rs.1,798/-, Rs.18,342/- and Rs.58,179/-. I uphold ..... X X X X Extracts X X X X X X X X Extracts X X X X
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