TRANSPEK INDS. LTD. Vs. COMMISSIONER OF C. EX.

JUDGEMENT

(1.) The delay in filing the appeals by M/s. Puriflair India Pvt. Ltd. and Dinesh Pharmaceuticals Pvt. Ltd. is condoned in view of the explanation offered by the applicants that time was required by them for collecting details from goods transport operators in order to work out their tax liability and in view of the fact that the same explanation has been accepted by the Tribunal in the case of Videocon Narmada Electronics Ltd. v. CCE, Baroda (Order No. CI/2540/WZB/2002, dated 14 -8 -2002.)

(2.) Now I take up the stay applications for hearing. All the above captioned applications for waiver of pre -deposit of amounts (as per Annexure A) arise out of the different Orders -in -Appeal passed by the Commissioner of Central Excise in terms of Section 84 of the Finance Act, 1944, directing all the applicants to work out service tax payable by them during the period from 16 -11 -1997 to 1 -6 -1998 and pay the same along with the interest till date of the payment of the service tax at the prescribed rate and directing them to file ST -3 returns for the said period in the prescribed form.

(3.) The brief facts are that the show cause notices were issued requiring the applicants to pay service tax for goods transport operators' service provided to them for the period 16 -11 -97 to 1 -6 -98 since they had neither applied for registration with Central Excise Authorities nor paid the service tax and hence there was a contravention of Sections 68 and 70 of the Finance Act, 1994. The notices directed them to furnish quarterly return in form ST -3 and proposed recovery of interest for the delayed payment and proposed penal action under Sections 76, 77 and 79 of the Finance Act, 1994. Prior to the issue of the notices, the validity of Rule 2(d)(xvii) of Service Tax Rules, 1944 was challenged before the Hon'ble Supreme Court and prior to the adjudication of the notices, the Apex Court held in the case of Laghu Udyog Bharti v. Union of India that the Rule was ultra vires of the Act and accordingly quashed the Rule. In view of the Supreme Court judgment, the Deputy Commissioner, vide the various Orders -in -Original, dropped the show cause notices. The Commissioner of Central Excise directed issue of notices for revision of the orders of the Dy. Commissioner, in view of the retrospective amendment of Service Tax Rules by Section 117 of the Finance Act, 2000, which states that 'notwithstanding anything contained in any judgment, decree or order or any Court, Tribunal or other authority, sub -clause (xii) and (xvii) of clause (d) of sub -rule (1) of Rule 2 of Service Tax Rules, 1944 as they stood immediately before the commencement of the Service Tax (Amendment) Rules, 1998 shall be deemed to be valid as if the said sub -clause had been in force at all material times. In the present impugned orders, the Commissioner has held that in view of the retrospective validation of the Service tax, all the applicants were required to pay Service tax on the gross amount of the transport charges, excluding insurance charges, paid by them to the goods transport operator. He directed the applicants to work out the tax payable and pay the same along with interest. The applicants have worked out the amounts as per Annexure A and have filed the present applications for waiver of pre -deposit and stay of recovery.