STEELCAST LTD. Vs. COMMISSIONER OF CENTRAL EXCISE

JUDGEMENT

(1.) THE issue involved in this appeal is liability of the appellants as recipient of service tax of transportation of goods by road during the period from 16 -11 -1997 to 1 -6 -1998 and services of clearing and forwarding agent from 16 -7 -1997 to 15 -10 -1998. The service tax demand of Rs. 3,63,711 has been confirmed against the appellant on the ground that show -cause notice issued by the revenue on 24 -7 -2006 is not barred by limitation in view of the fact that the appellants were required to pay service tax and file return in Form ST -3A/ST -3B on or before 13 -11 -2003 in terms of Section 158 of Finance Act, 2003. The appellant failed to file Service Tax Return and pay the tax and therefore it is the stand of the revenue that extended period is applicable.

(2.) LD . Chartered Accountant Shri Mehta on behalf of appellant submits that the issue is already covered by several judgments. He relies on the decision of the Hon'ble Supreme Court in CCE v. Gujarat Carbon & Industries Ltd. . On the other hand ld. DR submits that the judgment of the Tribunal and Courts are related to the period prior to introduction of Finance Act, 2003. The appellant was required to file the return before specified date (13 -11 -2003) therein and pay the service tax. In view of this provision, since the appellant did not file the return and pay the service tax, the issue of show -cause notice is not barred by the limitation and service tax is payable. He relies on the decision of Hon'ble Supreme Court in Gujarat Ambuja Cements Ltd. v. UOI , wherein the Hon'ble Court upheld the Constitutional validity of Section 158 of Finance Act, 2003. Further, he relies on decision of the Tribunal in J.K. Industries Ltd. v. CCE, [2006] 4 STT 117 (New Delhi - CESTAT), wherein it was held that as per amended Section 71A of Finance Act, 1994, as inserted by the Finance Act, 2003, requiring the appellant to file return and pay service tax, the appellant is not entitled to refund. He also cited the decision in CCE v. Mangalam Cement Ltd. .

(3.) IN this case though admittedly the appellant did not file return and pay the tax and therefore, show -cause notice is barred by limitation since it cannot be laid that the department was not aware of the requirements. No evidence has been put forth to show intent to evade payment of duty by not filing the return. In fact both the appellants and the revenue were aware of the decision of the Hon'ble Supreme Court. It is also not the case of the revenue that the appellants did not co -operate by not giving details thereby delaying one of show -cause notice to conclude, appellants to avoid paying the tax.