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CUSTOM EXCISE & SERVICE TAX APPELLATE TRIBUNAL, BANGALORE
S.L. Peeran, T.K. JAYARAMAN, JJ.
BPL Engineering Ltd. -Appellant
Versus
Commissioner of Service Tax, Bangalore -Respondent
Final Order No. 906/2006 Stay Order No. S/452/2006 ST/St/37/2005 Appeal No. ST/50/2005, 906 of 2006, S/452 of 2006, ST/St/37 of 2005, ST/50 of 2005
Decided On : 10-05-2006
Smt. Rukmani Menon,K.S. Reddy
Per Dr. S.L. Peeran : The stay and appeal are taken up together as the issue lies in short compass and covered by the Apex Court rulings rendered in the case of CCE, Meerut-II Vs. L.H. Sugars Factories Limited reported in 2005 (70) RLT 133 (SC)=2005 (187) ELT 5 (SC).
2. Revenue proceeded to recover Service tax of Rs. 27,782/- and penalty of Rs. 1,000/- for every day during failure to pay service tax under Section 76 of Finance Act, 1994, on the ground that the appellants were receiving the services of Goods Transport Operators (GTO) during the period 16.11.1997 to 1.6.1998. During the relevant period, the said services were not covered for levy of service tax. Latter by retrospective amendment, these services were held to be taxable. However, the show cause notice had been issued only after the amendment in 2004. Therefore, on that ground appellants submit that service tax cannot be confirmed as held by Apex Court in the case cited supra. It has been held that the demands could be confirmed only if the show cause notice had been issued prior to the amendment to the Finance Act covering the said services.
3. The learned Counsel submits that as the show cause notice was not issued before the amendment, the demands cannot be confirmed in terms of the cited judgment.
4. The learned SDR fairly concedes the position pertaining to the citation covering the issue.
5. On a careful consideration and perusal of records, we notice that the show cause notice was issued after the amendment brought to the Finance Act to cover the said services. In terms of the cited judgment, demands cannot be confirmed as the show cause notice had not been issue prior to the amendment. Respectfully following the ratio of the said judgment, the impugned order confirming service tax and levying penalty is set aside by allowing the stay application and the appeal.
