1. In both these appeals, the appellant challenges the order of the Commissioner (Appeals) made on 28-10-2005 upholding the order-in-original by which the Assistant Commissioner has rejected the refund claims of Rs. 8,59,494/- (Service Tax Appeal No. 44/2006) and Rs. 31,16,823/- (Service Tax Appeal No. 45/2006) made by the assessee under Section 11B in respect of the Service tax paid.
2. The contention of the appellant was that, the amounts of Service tax were paid under protest in respect of the service of Goods Transport Operators for the period between 16-11-1997 and 2-6-1998, and that the said amounts were not payable since the assessee was not covered by the amendment, because Section 71A was not brought under the net of Section 73. The appellant relies upon the ratio of the decision of the Tribunal in the case of L.H. Sugar Factories Ltd. v. CCE, Meerut , in which reliance was placed on the decision of the Hon'ble Apex Court in the case of Laghu Udyog Bharati v. Union of India .
3. It is pointed out by the learned Authorised Representative for the Department that, an identical issue has been decided against the appellant by this Tribunal in their own case in J.K. Industries Ltd. v.Commissioner of Central Excise Indore reported in 2006 (3) S.T.R. 14 (T-Del).
4. On perusal of the record, it does appear that these appeals involve issue, which has already been considered and decided in the aforesaid case. Paragraphs 8 and 9 of the judgment made in J.K. Industries Ltd. v. Commissioner of Central Excise, Indore (supra), are reproduced below: 8. The provisions of Section 71A which were inserted by the Finance Act, 2003 retrospectively w.e.f. 16th July, 1997 were enacted to enable such persons falling under the proviso of Sub-section (1) of Section 68 like the appellant to file the returns in respect of service tax for the said period within six months from the day on which the Finance Act, 2003 received the assent of the President in the prescribed manner, on the basis of the self-assessment of the service tax, as provided therein. It was also provided in Section 71A that the provision of Section 71 shall apply accordingly, to such returns. Rule 7A thereupon came to be inserted by the Service Tax (Amendment) Rules, 2003 w.e.f. 14-5-2003 in which it was provided that, notwithstanding anything contained in Rule 7 which related to half-yearly return, an assessee in case of service provided by goods transport operator for the period from 16th day of November, 1998 to 2nd day of June, 1998 shall furnish a return within a period of six months from the 13th day of May, 2003 in Form ST-3B along with copy of Form TR-6 in triplicate, failing which the interest and penal consequences as provided in the Act shall follow.
It is, therefore, clear to us that not only the past recoveries were validated by Section 117, the amendment also provided for continuance of the liability of persons falling in the proviso of Section 68(1) who were to be deemed always to have been liable to pay service tax, for such services provided, to the credit of the Central Government. In such cases there was no scope for the applicability of Section 70 of the said Act and, therefore, the special provision for filing of returns was necessarily required to be made as per Section 71A, because, they could not have filed return earlier. Validating of legislation retrospectively curing defects in a taxing statute is a well recognized course, and the appellant did not acquire any vested right from the earlier defect in the statute and cannot seek a wind fall from the legislatures' mistakes. The Parliament has enacted a valid law with retrospective effect and, therefore, the earlier judgments become irrelevant and the matter has to be viewed only in the context of the provisions now existing, which clearly provided for the liability of the appellant in respect of the services provided by the goods transport operators for which the appellant paid the freight and was deemed always to have been liable to pay service tax for the period in question, from 16th July, 1997. The appellant was bound to file the returns as mandatorily required by Section 71A and accordingly the return was filed as per this machinery provision, with the payment of service tax as per the challans. The only protest lodged by the appellant, at the time of filing of the return, was that refund claim would be preferred if the provisions of the amending Act which made the appellant liable to file the return were held to be ultra vires, by the Apex Court. The provisions have been upheld by the Supreme Court in Gujarat Ambuja Cements Ltd., (supra), and therefore, the very basis of the protest did not survive. The returns were filed by the appellant on self-assessment basis and the validity of statements made thereunder had been vouchsafed in the returns.
9. The service tax paid on the basis of self-assessment as per the statutory provision was a valid collection of tax by the government and, therefore, it was in no way refundable to the appellant who was liable to pay the same under the amended provisions. The period for filing of the returns was provided in Section 71A which was six months from the date on which the Finance Act, 2003 received the assessment of the President, and the appellant filed the return within the period so prescribed. In a case which was covered by Section 71A read with Rule 7A the date of filing of return cannot be drawn from the provisions of Section 70. In fact, Section 71A clearly specified that the provision of Section 70 did not apply to persons referred to in the proviso to Sub-section (1) of Section 68 for the filing of return. It cannot, therefore, be accepted that the time limit for filing of return by the appellant should be computed on the basis of the provision of Sections 70 and 73 as from the date on which the half-yearly return could have been filed under Section 70 read with Rule 7 which were wholly inapplicable in case of the appellant when specific provision of Section 71A was made in the context of the persons like the appellant for filing of the return and period within which the return was to be furnished was also provided. The contention that the appellant was not liable to pay the service tax since the recover would have been time-barred on the basis of the deemed liability having been arisen earlier on the expiry of the relevant period in 1998, is, therefore, wholly misconceived. The return filed by the appellant under Section 71A on the basis of self-assessment could have been verified under Section 71 by the concerned officer in view of the specific provision made in Section 71A to the effect that Section 71 shall apply to such return. However, even when it was not taken up for verification, it cannot be said that the service tax paid on the basis of self-assessment was not tax assessed. Since the service tax was validly paid under the liability arising under the amended provisions, particularly under Section 71A requiring the appellant to file such return, the appellants are not entitled to the refund.
There was no question of issuance of any show cause notice under Section 73 for recovery, because, the appellants had paid the tax on self-assessment basis under the return filed under Section 71A of the Act read with Rule 7A of the Act. None of the contentions raised on behalf of the appellant has, therefore, any substance.
5. It is, therefore, clear that the appellant was rightly held by the authorities below to be not entitled to get the refund of Service tax paid in these cases. We, therefore, do not find any error in the impugned order. Both the appeals are, therefore, dismissed.
(Dictated and pronounced in the open Court on the 11th day of July, 2007)