Case Law Details
Raymond Limited Vs Commissioner, Central Excise Customs & Service Tax (CESTAT Delhi)
Whether show cause notice dated 28.09.2001 has been validly issued, for raising demand of service tax on GTO/GTA services received by the appellant for the disputed period, in terms of the prevailing Section 73 under reverse charge, and
Hon‟ble Bombay High Court in the case of Indian National Shipowners Association have held that service tax cannot be levied under reverse charge mechanism prior to 18.04.2006, when Section 66A was introduced and/or inserted in the Finance Act, providing for levy of service tax from the receiver of service, under reverse charge mechanism (RCM). This ruling have been confirmed by Hon‟ble Supreme Court.
I further take notice that in para 11 of the show cause notice it is observed that Hon‟ble Supreme Court in case of Laghu Udyog Bharati by its judgment dated 27.07.1999, have held the provision of levy under reverse charge basis, as per Rule 2(1)(d) of the Service Tax Rules in the case of GTO service, as ultra virus the Finance Act, 1994. Accordingly, in these facts and circumstances and in view of the law pronounced by the Apex Court, I hold that the extended period of limitation cannot be invoked, as admittedly the show cause notice have been issued after the normal period of limitation. I further find that the whole proceedings and the show cause notice is ab initio void in view of the ruling of the Hon‟ble Supreme Court, noticed herein above.
The revenue is directed to grant refund of the amount of Rs. 43,89,613/- to the appellant (paid under protest) with interest @ 12% per annum (as held by this Tribunal in the case of Parle Agro) for the period from 08.11.2003 till the date of payment, within a period of sixty days from the date of receipt/ service of the copy of the order. Accordingly, both the appeals are allowed and the impugned orders in appeal are set aside.
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