India Cements Ltd. Vs. the Commissioner of Central - Court Judgment

Excerpt:
1. the stay application and the appeal are taken up together for the disposal as the issue involved in this case is covered by the judgment rendered in the appellant's own case by final order nos. 1717 & 1718/2006 dated 11.10.2006 and also in the case of bpl ltd. v.commissioner of service tax, bangalore 2006 (2) s.t.r. 146 (tri. - bang.). this appeal arises from the order-in-appeal no. 2/2006 (h-ii) s. tax dated 28.07.2008. the appellants were called upon to discharge service tax on the services of goods transport operator for the period from 16.11.1997 to 02.06.1998. a show cause notice was issued alter 4 1/2 years. the show cause notice has not been issued prior to the date involved for which tax has been demanded. the matter has been looked into by the apex court in the case of.....

Judgment:
1. The stay application and the appeal are taken up together for the disposal as the issue involved in this case is covered by the judgment rendered in the appellant's own case by Final Order Nos. 1717 & 1718/2006 dated 11.10.2006 and also in the case of BPL Ltd. v.Commissioner of Service Tax, Bangalore 2006 (2) S.T.R. 146 (Tri. - Bang.). This appeal arises from the Order-in-Appeal No. 2/2006 (H-II) S. Tax dated 28.07.2008. The appellants were called upon to discharge service tax on the services of Goods Transport Operator for the period from 16.11.1997 to 02.06.1998. A show cause notice was issued alter 4 1/2 years. The show cause notice has not been issued prior to the date involved for which tax has been demanded. The matter has been looked into by the Apex Court in the case of Laghu Udyog Bharati v. UOI and the Tribunal in the case of L.H. Sugar Factories Ltd. v. CCE, Meerut-II Tribunal has clearly held that service tax will not be levied if show cause notice has not been issued prior to the amendment brought to the Finance Act, 2003. Based on these judgments, this Bench in the appellant's own case has set aside the demands by above noted Final Order. The issue is an identical one, hence we take up the appeal for the disposal.

2. The learned SDR submits that the demands were protected by retrospective effect by amendment brought to the Finance Act, 2003. She prays for dismissing the appeal as the return had been filed only in 2004. The learned DR relied on the Apex Court judgment rendered in the case of Gujarat Ambuja Cements Ltd. v. U.O.I. .

3. We have carefully considered the submissions made by both the sides.

We notice that the issue is no longer res-integra although the amendment to the Finance Act was brought retrospective effect. However it was laid down by the Tribunal in the case of L.H. Sugar Factories Ltd. (supra) that the demands have not been protected by issue of show cause notices prior to the retrospective amendment brought in the Finance Act. In the present case, the show cause notice has been issued subsequent to the period and after the amendment to the Finance Act, 2003. Therefore in terms of the Final Order cited supra rendered by this Bench in the appellant's own case, the demand is not sustainable.

In view of the issue is settled in the assessee's favour, the appeal is allowed with consequential relief.