1. This appeal is directed against Order-in-Appeal dated 26-5-2005 which upheld the Order-in-Original wherein refund claim of the appellants was rejected.
2. None appeared for the appellants, but there is a request for waiver of personal appearance and to decide the matter on merits. Heard the learned D.R. and perused the records.
3. The issue involved in this case is in a very narrow compass. The appellants paid an amount of service tax of Rs. 15,663/- for the period 16-11-97 to 2-6-98. After the amendment of the notification they claimed the refund of the same. The appellants' contention is that they have paid the amount of service tax and since there is retrospective amendment by Section 117 of Finance Act, they are eligible for the refund.
4. I find that the Commissioner (Appeals) in his Order-in-Appeal at Para 5 has held as under: - I have gone through the facts and circumstances of the case and various submissions made by the appellant. I find that the Hon'ble Supreme Court of India vide judgment in the matter of Gujarat Ambuja Cements Ltd. and Anr. v. Union of India and Anr. Writ Petition (Civil) 539 of 2000 has settled the subject issue and upheld the validity of amendments and the action taken in pursuant to the earlier Rules and further upheld the levy of tax on the recipient of the services in the case of services rendered by Goods Transport Operators and Clearing and Forwarding Agents. While upholding the constitutional validity of the amendments and the levy of tax, the Hon'ble Court directed that the liability to pay interest or penalty on outstanding amounts would arise only if dues are not paid within the period of two weeks from the order passed by the court on 17-11-2003 and in all other cases where tax have been paid and not refunded to the writ petitioners for whatever reason, there is no question of levy of any interest or penalty at all. In view of the above adjudicating authority has correctly rejected the refund claim. I therefore uphold the impugned order and reject the appeal.
5. From the above reading of the Order-in-Appeal I find that Commissioner (Appeals) has correctly interpreted the law as was prevalent during the period. The issue involving non-payment of service tax by people against whom no action was initiated by the department could take the advantage of the retrospective amendment and contest the issue. In this case the appellant had already paid the Service Tax liability arising on services received from GTO, and seeks refund of the same, which would not get covered by the retrospective amendment.
In view of the above appeal is dismissed.