Justice R.K. Abichandani, President. - These two appeals are filed by the revenue against the common order made by the Commissioner (Appeals) by which he set aside the orders-in-original confirming service tax demand in one case (Service Tax Appeal No. 2/23 of 2005) of Rs. 60,26,508 under section 73(2) of the Finance Act, 1994, imposing penalty of Rs. 48,700 under section 76 and ordering interest amount of Rs. 8,84,287 under section 75 of the Finance Act, 1994, and in the other case (Service Tax Appeal No. 224 of 2005) confirming service tax of Rs. 24,23,911 under section 73(2) of the Finance said Act, imposing penalty of Rs. 48,700 under section 76 of the Act and ordering payment of interest of Rs. 3,83,608 under section 75 of the Act.

2. The respondents are engaged in the manufacture of cement and were having registration for the purpose of service tax. The respondents received goods transport operators’ services during the period 16-11-1997 to 2-6-1998. According to the revenue, since the respondents were liable to pay service tax under the amended provisions of the proviso to section 68(1), read with section 71A of the Act, they were required to file return in Form ST-3B along with copy of challan of payment of tax in Form TR-6. The return was required to be filed for the services received during the period from 16-11-1997 to 2-6-1998 in the prescribed Form ST-3B on or before 13-11-2003. The respondents, however, submitted ST-3B return on 27-11-2003 for the services received during the said period without any payment of service tax and therefore, without the returns accompanying copy of TR-6 challan. The revenue therefore, requested the assessees to pay service tax pointing out that Hon’ble the Supreme Court had rejected their application for stay/recovery of service tax on the GTO services received by them. The appellants deposited a part of the amount in these two cases, of Rs. 15 lacs and Rs. 5 lacs, respectively on 13-2-2004. They contended before the revenue that, they had challenged the constitutional validity of sections 116 and 117 of the Finance Act, 2000 and section 158 of the Finance Act, 2003 as well as section 71A of the Finance Act, 1994, before the Hon’ble Supreme Court by amending their writ petition and therefore, the matter was subjudice. The Hon’ble the Supreme Court by its decision rendered on 17-3-2005 in Gujarat Ambuja Cement Ltd. v. Union of India 2005 (182) ELT 33/[2005] 1 STT 41 (SC) , dismissed the writ petitions including the petition filed by the present respondents and extended the time from the order dated 17-11-2003 by two weeks. The respondents-assessees thereafter paid up the remaining dues of service tax. Thus, the entire service tax payable by the respondents was paid by them on 15-12-1997, 13-2-2004 and 15-3-2005, about which fact there was no dispute.

3. The respondents-assessees had contended in their reply to the show-cause notice that since the matter was pending before the Supreme Court on the question of challenge against the validating provisions of sections 116 and 117 of the Finance Act, 2000, section 158 of the Finance Act, 2003 and section 71A of the Act, no amount was recoverable from them. It was also contended that no interest could be recovered because the Supreme Court had extended the time by two weeks from 14-11-2003 to enable the assessees to file their returns. It was also contended by the respondents that as per section 71A and rule 7A, returns were required to be filed by them on or before 13-11-2003 and Hon’ble the Supreme Court had extended the time by order dated 17-11-2003 for filing the return by two weeks which they had filed on 27-11-2003, which was within the time extended by the Supreme Court.

4. It will be seen from the order-in-original that the respondents had submitted that their reply dated 20-5-2004, may be treated as reply to the show-cause notice. All these contentions have been reproduced in the order-in-original. We emphasize this fact because