CCE Vs. EID PARRY (I) LTD.

JUDGEMENT

(1.) AN appeal has been filed by the department with a delay of 29 days accompanied by condonation of delay application against the Order -in -Appeal No. 143/2005 dated 14.9.2005 passed by the Commissioner (Appeals), Trichy. The facts of the case are that an amount of Rs. 5167/ - had been demanded by the original authority from M/s EID Parry (I) Ltd., Pettavaithalai towards service tax for goods transport operator services availed by them during 16.11.1997 to 1.6.98. On appeal by the assessee, the Commissioner (Appeals) set aside the demand made following the judgment of the Supreme Court in CCE Meerut -II v. L.H. Sugar Factories Ltd. 2005 (187) ELT 5 (SC).

(2.) TAX recovery proceedings had been initiated under Section 73(1) of the Finance Act, 1994 against the assessee. The said section provided for such action only against persons liable to file return under Section 70 or those who had not disclosed material facts for verification of the assessment under Section 71. The assessees who were to file return under Section 71A could not be proceeded against under Section 73 for recovery of tax on services availed during 16.11.97 to 2.6.98. The Hon'ble Supreme Court in the case of CCE Meerut v. L.H. Sugar Factories Ltd. (supra), decided that Section 73 was attracted only in the case of assessees who were liable to file return under Section 70. In respect of the assessees, who were covered by Section 71A had not been brought under the net of Section 73. Therefore, SCNs issued to such assessees invoking Section 73 were not maintainable. Following the above decision, the Commissioner (Appeals) set aside the order of the original authority demanding service tax of Rs. 5167/ -.

(3.) IN the COD application, it is mentioned that the Order -in -Appeal had to be accepted by the department in view of the apex court's decision in the case of CCE Meerut v. LH Sugar Factories Ltd. (supra). However in a similar matter, Civil Appeal No. 1618/2005 filed by the CCE Vadadora -I in the case of Gujarat Carbon and Industries Ltd. and the Civil Appeal No. 7144/2005 filed by the Chennai III Commissionerate in the case of Sundaram Fasteners Ltd. were admitted by the Hon'ble Supreme Court. On coming to know of the above development, the Commissioner decided to file the appeal along with COD application. It is stated that huge amounts are involved in respect of the subject appeal and 16 other similar cases. It is requested that the delay involved may be condoned on the above ground.