CCE, BELGAUM Vs. GHATAPRABHA SAHAKARI SAKKARE KARKHANE NIYAMIT

JUDGEMENT

(1.) THIS is a revenue appeal passed by Commissioner (A), Mangalore vide his Order -in -Appeal No. 247/2005 -CE dated 26 -10 -2005. The Commissioner (A) has recorded his findings as follows : I have gone through the record of this case and carefully considered submissions made by the appellants. The appellants had sought to dispute the impugned order both on account of confirmation of demand as well as interest on delayed payment. I find that the issue has been finally settled by decision of Honble Supreme Court of India in L. H. Sugar Factory Ltd. case as reported in 2005 (187) E.L.T. 5 (S.C.) where it was held that show cause notice issued under Section 73 was not maintainable in case of entities who were not liable to file Service tax returns under Section 70 but u/s 71A and that Section 73 did not cover cases of liability under Section 71A. I find that show cause notice was issued to the appellant on 10 -1 -2003 invoking Section 70 of the Act. In view of Honble Supreme Court decision referred above the appellant have to be given the relief they are seeking. I set aside the impugned order on all grounds and allow the appeal. The revenue is aggrieved with this order and contend that the Apex Court has upheld the constitutionally validity of validating provisions of Finance Act, hence the Service tax raised is required to be confirmed. It is submitted that the subsequent judgment of the Apex Court rendered in L. H. Sugar Ltd. v. CCE - 2006 (3) S.T.R. 715 (S.C.) = 2005 (187) E.L.T. 5 (S.C.) ultra virus inasmuch as there is no reason to question the levy of Service tax which is validated in respect of receiver of the service

(2.) THE learned JDR submitted that the order is not correct and requires to be set aside.

(3.) SHRI S. Raghu, Advocate appeared on behalf of the appellants and submitted that demands are time barred as the earlier show cause notice have been issued and the matter is covered by the Larger Bench judgment rendered in the case of Nizam Sugar Factory v. CCE as reported in 2006 (197) E.L.T. 465 (S.C.) He also submitted that the show cause notice dated 10 -11 -2004 is time barred and the same does not allege suppression or any intention to evade duty. It is also submitted that three other show cause notice had been issued earlier for the same period and for the same reason, therefore, question of imposing interest and penalty does not arise and the Commissioner (A) has rightly relied on the Apex Court judgment.