M/S Hindalco Industries Ltd vs Commissioner, Central Excise & Service ...

Appeal No.ST/49/2008 [Arising out of OIA-COMMR-A-/6VDR-II/2008, dt.17.01.2008, passed by Commissioner (Appeals), Central Excise & Service Tax, Vadodara-II]

M/s Hindalco Industries Ltd Appellant

Vs

Commissioner, Central Excise & Service Tax, Vadodara-II Respondent

Represented by:

For Appellant: Shri Vinay Kansara, Advocate For Respondent: Shri Jitendra Nair, Authorised Representative

For approval and signature:

Honble Mr. P.K. Das, Member (Judicial) Honble Mr. P.M. Saleem, Member (Technical)

1. Whether Press Reporters may be allowed to see the No Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?

2. Whether it should be released under Rule 27 of the No CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?

3. Whether their Lordships wish to see the fair copy of Seen the order?

4. Whether order is to be circulated to the Departmental Yes authorities?

CORAM:

HONBLE MR. P.K. DAS, MEMBER (JUDICIAL) HONBLE MR. P.M. SALEEM, MEMBER (TECHNICAL)

Date of Hearing/Decision:15.07.2015

Order No. A/11005 / 2015, dt.15.07.2015

Per: P.K. Das

The Appellants were engaged in the manufacture of excisable good falling under Chapter 74 of the Schedule to Central Excise Tariff Act, 1985. A show cause notice dt.30.03.2007 was issued, proposing demand of Service Tax of Rs.8,68,681.00 alongwith interest and to impose penalty on the services under the category of Goods Transport Operator received by them during the period 16.11.1997 to 02.08.1998. The Adjudicating authority confirmed the demand of Service Tax alongwith interest and imposed penalty. The Commissioner (Appeals) upheld the Adjudication order. The demand of Service Tax was raised on the basis of amendment of Goods Transport Agency Services by Finance Act, 2003.

2. We find that the issue is no more res integra in view of the following decisions of Hon'ble Gujarat High Court:-

a) CCE Vadodara-I Vs EIMCO Elecon Ltd 2010 (20) STR 603 (Guj.)

b) CCE Vs Hiren Aluminum Ltd 2010-TIOL-682-High Court-AHM-ST

In the case of EIMCO Elecon Ltd (supra), the Hon'ble Gujarat High Court held that the show cause notice dt.11.11.2004 for the period 16.11.1997 to 02.08.1998 on the identical matter is barred by limitation. In the present case, the show cause notice was issued on 30.03.2007. Hence, the present case is covered by the decision of Hon'ble Gujarat High Court in the case of EIMCO Elecon Ltd. The relevant portion of the said decision is reproduced below:-

1.?The case of the appellant-revenue as propounded by learned counsel for the appellant is that the respondent-assessee availed services of Goods Transporter Operator between period from 16-7-1997 to 2-6-1998. Respondent-assessee was liable to pay Service Tax as recipient of such services. The adjudicating authority, after issuing show cause notice made an order on 28-2-2005 ordering recovery of Service Tax amounting of Rs. 95,695/- in terms of provisions of Sections 68 and 73 of the Finance Act, 1994 read together and also demanded interest and penalty imposed under Sections 75, 76, 77, 78 and 75-A of the Finance Act, 1994. The appeal filed by the assessee before Commissioner (Appeals) failed and hence, second appeal was preferred before the Tribunal. The assessee succeeded before the Tribunal on the basis of two Apex Court decisions referred to by the Tribunal in the impugned order.

2.?According to learned counsel, considering the fact that provisions of Section 73 stood amended by Finance (No. 2) Act, 2004 w.e.f. 10-9-2004, the show cause notice issued on 11-11-2004 could not be treated to be barred by limitation and Tribunal had committed an error in recording such a finding without recording complete facts in this regard. It was further submitted that once Section 73 stood amended, the ratio of the Apex Court judgments would not be applicable. In the circumstances, strong reliance has been placed on the two judgments referred to in proposed question No. 5 to contend that the Tribunal having passed a cryptic non-speaking order, matter is required to be restored to the file of the Tribunal. Alternatively, it was submitted that on merits also no case was made out for interference by the Tribunal and the assessee had rightly been called upon to discharge liability of Service Tax along with interest and penalties for late filing of return, late payment of tax, etc.

3.?It is not in dispute that till Finance Act, 2003 introduced a Proviso under sub-section (1) of Section 68 of the Finance Act, 1994 the liability to pay Service Tax was on the person providing taxable service, and not on the recipient. Simultaneously Section 71A came to be introduced by the Finance Act, 2003 casting the liability on the service recipient to file a return within six months from the date on which the Finance Bill, 2003 receives assent of the President. However, even after this amendment, the Apex Court has noted that in absence of Section 71A of the Finance Act, 1994 (which has retrospectively been introduced w.e.f. 16-7-1997) appearing in Section 73 of the Finance Act, 1994 no levy of any short duty or non-levy could have been demanded.

4.?Thus, it is apparent that till the point of time Section 73 of the Finance Act, 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.

3. The learned Authorised Representative on behalf of the Revenue submits that the Larger Bench of the Tribunal in the case of Agauta Sugar & Chemicals Vs CCE Noida  2010 (19) STR 849 (Tri-LB) answered the reference in favour of the Revenue. We are unable to accept the submission of the learned Authorised Representative, as the issue has already been decided by the Hon'ble Gujarat High Court as stated above.

4. In view of the above discussion, the impugned order is set aside. Appeal filed by the Appellant is allowed.

(Dictated & Pronounced in Court)

(P.M. Saleem) (P.K. Das) Member (Technical) Member (Judicial)

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