COMMISSIONER OF CENTRAL Vs. SIEMENS VDO AUTOMOTIVE LTD.

JUDGEMENT

(1.) REVENUE has filed this appeal against the Order -in -Appeal No. 30/2006 -Central Excise dated 24.03.2006 passed by the Commissioner of Central Excise (Appeals -I), Bangalore.

(2.) THE Respondents availed Goods Transport Service during the period from 16.11.1997 to 01.06.1998. Revenue proceeded against the Respondents by way of issue of Show Cause Notice. The Deputy Commissioner passed the Order -in -Original dated 24.10.2002 confirming the demand. The Commissioner (Appeals), in his order dated 31.07.2003, set aside the above Order -in -Original as time barred. Consequent to the insertion of Section 71A to the Finance Act 1994, one more Show Cause Notice dated 04.03.2004 was issued to the respondent demanding duty. The Assistant Commissioner of Service Tax passed an Order -in -Original dated 30.11.2005. The respondents appealed to the Commissioner (Appeals). The Commissioner (Appeals), by relying on the L.H. Sugar Factories Ltd. v. CCE, Meerut -II case, upheld by the Supreme Court as reported in 2005 (187) ELT 5(SC), set aside the Order -in -Original passed by the Assistant Commissioner on the ground that a person receiving taxable service of Goods Transport Operator is not liable to pay Service Tax under Section 73 of the Finance Act, 1994 even after insertion of Section 71A of the Finance Act, 1994. Thus, the Commissioner (Appeals) decided the issue in favour of the respondents by setting aside the Order -in -Original dated 30.11.2005.

(3.) REVENUE is aggrieved over the impugned order on the ground that the Supreme Court's order in the case of L.H. Sugar Factories Ltd., upholding Tribunal's decision, is a short order. Therefore, the matter was argued at length before the Apex Court in the case of CCE, Chennai -II v. Sundaram Fasteners Ltd. in Civil Appeal No. D -15409/2005 on 28.11.2005. The appeal has been admitted by the Supreme Court. On a harmonious reading of the four provisions viz, Section 68, Section 71A, Section 71 and Section 73, the legal position which emerges is that a demand under Section 73 of the Act can be raised against a person covered by Section 71A of the Act also. This point has not been raised before the Tribunal in the case of L.H. Sugar Factories Ltd. nor considered. Therefore, the legal position appears that the Service Tax leviable in respect of assessees covered under Section 71A can be recovered by a notice issued under Section 73 of the Act.