Momentum Strategy Consultants Vs. the Commissioner of Service Tax - Court Judgment

Excerpt:
1. the appellant is required to pre-deposit service tax of rs. 6,20,3 84/- and penalties in terms of the order. the appellants have been denied the benefit of exemption notification no. 21/03 st dated 20.11.03. they have been denied the benefit on the ground that the benefit of notification cannot be granted with retrospective effect.the appellants had received payments in foreign currencies. therefore, the revenue proceeded to levy service tax on such receipts for the period 1.3.03 to 19.11.03 demanded by show cause notice dated 3.1.06.learned counsel submits that the issue is covered by the board circular dated 25.4.03. he submits that all the details were known to the department and therefore, the demands are also barred by time. they had been filing st-3 returns. learned counsel relies on large number of apex court judgments including the ruling rendered by the apex court in the case of pushpam pharmaceuticals co. v. cce wherein it has been held that where rt-12 returns have been regularly filed and then in such a case larger period cannot be invoked. he submits that the appellant had been filing st 3 returns and all the details were disclosed to the department. hence, larger period is not invokable. learned counsel submits that the commissioner (appeals) was not justified in remanding the issue for denovo consideration while recording findings on merits. he submits that there was no question of remand when the issue was covered by the board circular.2. heard learned dr who submits that when the issue has been remanded, the question of hearing the appeal on merits does not arise. he submits that the appeal can be disposed of by remand by keeping all issues open. this prayer is opposed by the counsel.3. on a careful consideration, we notice that the plea of time bar is prima facie sustainable. if this issue is decided, then the question of remand does not arise. therefore not withstanding the fact that issue is covered by board circular, we are inclined to grant waiver as prima facie the demands are time barred. the stay application is allowed granting waiver of pre-deposit and staying its recovery. appeal to come up for hearing in it's turn.

Judgment:
1. The appellant is required to pre-deposit Service Tax of Rs. 6,20,3 84/- and penalties in terms of the order. The appellants have been denied the benefit of exemption Notification No. 21/03 ST dated 20.11.03. They have been denied the benefit on the ground that the benefit of Notification cannot be granted with retrospective effect.

The appellants had received payments in foreign currencies. Therefore, the revenue proceeded to levy service tax on such receipts for the period 1.3.03 to 19.11.03 demanded by show cause notice dated 3.1.06.

Learned Counsel submits that the issue is covered by the Board Circular dated 25.4.03. He submits that all the details were known to the department and therefore, the demands are also barred by time. They had been filing ST-3 returns. Learned Counsel relies on large number of Apex court judgments including the ruling rendered by the Apex Court in the case of Pushpam Pharmaceuticals Co. v. CCE wherein it has been held that where RT-12 returns have been regularly filed and then in such a case larger period cannot be invoked. He submits that the appellant had been filing ST 3 returns and all the details were disclosed to the Department. Hence, larger period is not invokable. Learned Counsel submits that the Commissioner (Appeals) was not justified in remanding the issue for denovo consideration while recording findings on merits. He submits that there was no question of remand when the issue was covered by the Board Circular.

2. Heard learned DR who submits that when the issue has been remanded, the question of hearing the appeal on merits does not arise. He submits that the appeal can be disposed of by remand by keeping all issues open. This prayer is opposed by the counsel.

3. On a careful consideration, we notice that the plea of time bar is prima facie sustainable. If this issue is decided, then the question of remand does not arise. Therefore not withstanding the fact that issue is covered by Board circular, we are inclined to grant waiver as prima facie the demands are time barred. The stay application is allowed granting waiver of pre-deposit and staying its recovery. Appeal to come up for hearing in it's turn.