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TMI Blog2024 (11) TMI 668X X X X Extracts X X X X X X X X Extracts X X X X ..... , 1994 came to be substituted w.e.f. 10-9-2004 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 state that the language of the Statute is so clear that any default can be fastened on the respondent-assessee. Thus, we find that the entire demand under the impugned show cause notice is barred by period of limitation and theref ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... otification no. 41/97 dated 15.11.97 is attached as annexure 1). The Service Tax Amendment Rules 1997 made vide notification no. 42/97-ST by incorporating clause no. (xvii) in rule 2(1)(d) specified the person who pays or is liable to pay the freight either himself or through his agent for the transportation of goods was specified as a person liable to pay service tax. In accordance with the said rule, the person who pays to a transporter either through himself or through his agent was liable to pay the service tax. Copy of notification no. 42/1997 attached as annexure 2. The provisions relating to recovery of service tax from the service receiver as against service provider was challenged by Laghu Udyog Bharati in a special leave petition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Subsequent to 1997-98, the records of the company have been audited by the central excise officers time and again and they have been given the balance sheet for the respective period. In 2004, the show cause notice was served by Assistant Commissioner of Central Excise bearing nor V(S.Tax)//3-10/DSCN/2804 05 for levy of penalty for non filing of retum under section 7A in form 38 The company has replied to the said show cause notice vide letter dated 10th September 2004. Further, the personal hearing for the said show cause notice was fixed on 5th December 2005. The company has not received any order on the said show cause notice and hearing. 1.1. The matter has been adjudicated by the impugned Order-In-Original dated 29.03.2017 where all t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rasives 2007 (6) H.T.R. 259(Tri.-Chennai) Electronic Research Pvt. Ltd. versus Commissioner of S.T., Bangalore 2006 (2) S.T.R. 109 (Tri.-Bang.) Agauta Sugar Chemicals versus Commissioner of C. EX., Noida 2010 (19) S.T.R. 849 (Tri-LB) BPL Ltd. versus Commissioner of Service Tax, Bangalore 2006 (2) S.T.R. 146 (Tri.-State.) Commissioner v. BPL Ltd. 2010 (18) S.T.R. J58 (KAR.) Cairn Energy (I) Pvt. Ltd. Vs. Commr. or CUS. C. EX., Vishakhapatnam-II 2008 (11) S.T.R. 632 (Tri.-State.) PSL Ltd. versus Commissioner of Central Excise 2014 (35) S.T.R. 126 (Tri.-Ahmed.) 3. We have also heard the departmental representative who has reiterated the findings as given in the impugned Order-In-Appeal. 4. Having heard both the sides. We are of the view that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ence, in view of the above decisions, the demand is not sustainable. 6. Revenue relied upon the decision of the Larger Bench of the Tribunal in the case of Agauta Sugar Chemicals v. CCE, Noida - 2010 (19) S.T.R. 849 (Tri-LB). We find that the above-mentioned decisions of Hon ble High Courts were after the decision of the Larger Bench. 7. We find that in the present case, the demand was made by issuing a show cause notice in the year 2007 i.e. after retrospective amendment. At the time of retrospective amendment, no proceedings were pending against the appellant in respect of Service Tax. The Hon ble High Court of Gujarat in the case of Eimco Elecon Ltd (supra) held as under : - It is not in dispute that till Finance Act, 2003 introduced und ..... X X X X Extracts X X X X X X X X Extracts X X X X
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