DURAIRAJ MILLS LTD. Vs. COMMISSIONER OF C. EX.

JUDGEMENT

(1.) M /s. Durairaj Mills Ltd., Annur, has filed this stay application for waiver of pre -deposit of service tax and stay of recovery. After hearing both sides on the application, after dispensing with the requirement of pre -deposit, the appeal itself is taken up for final disposal.

(2.) THE appellants availed Goods Transport Operators (hereinafter GTO) service during the period 16 -11 -1997 to 1 -6 -1998. They did not pay the service tax due on the said service. Proceedings were initiated to recover the tax due vide a Show Cause Notice dated 9 -11 -2004, issued pursuant to enactment of Finance Act, 2003. In the impugned order, the Commissioner (Appeals) affirmed the demand of Rs. 90,415/ - made by the original authority adjudicating the show cause notice.

(3.) THE ld. Consultant for the appellants submits that recovery of service tax not levied or short levied is provided under Section 73 of the Finance Act, 1994 (the Act). Section 73 did not provide for demand of such service tax not levied or short paid in respect of GTO service and C&F Agents service, as the availer of these services were required to file return under Section 71A and Section 73 did not provide for recovery of tax not paid by such assessees. Therefore, the order of the original authority demanding service tax under Section 73 of the Act was not maintainable. He also cited the judgment of the Hon'ble Apex Court in CCE, Meerut -II v. L.H. Sugar Factories Ltd. reported in 2006 (3) S.T.R. 715 (S.C.) : 2005 (187) E.L.T. 5 (S.C), in support of his plea.