R.K. MARBLE PVT. LTD. Vs. CCE

JUDGEMENT

(1.) THIS application for stay is directed against the order in appeal dated 10.7.06 which upheld the order in original regarding the demand of duty and also recovery of interest. Since the issue involved is squarely covered by the decision of the Tribunal, as upheld by the Hon'ble Supreme Court, the pre -deposit of the amount of duty involved is waived and appeal itself is taken up for disposal.

(2.) REVENUE issued show cause notice dated 5.11.2004 to the appellants on the basis of amended Section 73 of the Finance Act, 1994 for recovery of the service tax payable by the appellant as receipt of services from goods transporter operator for the period from 16.11.1997 to 2.6.1998.The specific allegations in the show cause notice is as under: Whereas, the amended Section 73 [73(1) to be precise] reads as under: Where any service tax has not been levied or paid or has been short -levied or short -paid or erroneously refunded, the Assistant Commissioner or, as the case may be, the Deputy Commissioner of Central excise may, within one year from the relevant date, serve notice on the person chargeable with the service tax which has not been levied or paid or which has been short -levied or short -pad or the person to whom such tax refund has erroneously been made, requiring him to show cause why he should not pay the amount specified in the notice. In view of the facts stated above, it appears that the assessee has contravened the provisions of Section 68 of the Chapter V of the Finance Act, 1994 (32 of 1994) in as much as they had not paid service tax on taxable service i.e. Transport services provided to them by the goods transport operators during the period 16.11.97 to 2.6.1998. The assessee is therefore liable to pay service tax amounting to Rs. 3,48,184/ -not paid by them during the period 16.11.1997 to 2.6.1998 in terms of Section 66 ibid and 68 ibid, and chargeable to interest on the amount of service tax not paid in terms of Section 75 ibid. The assessee is also liable to penalty in terms of Section 76 of the chapter V of the Finance Act, 1994 (32 of 1994). Now therefore, the said M/s R.K. Marble Ltd Kishangarh are hereby called upon to show cause and explain to the Deputy commissioner, Central excise Division, Ajmer, Central Revenue Building, Ajmer within 30 days of receipt of this notice as to why:

(3.) THE learned Advocate submits that the issue is squarely covered by the decision of the Tribunal in their own case vide order No. 244/06 -SM dated 3.11.06. It is also his submission that the issue is also squarely covered by the decision of the Tribunal in the case of L&H Sugar Factories Ltd v. CCE Meerut , which was upheld by the Hon'ble Supreme Court as reported in 2005 (187) ELT 5.