Amendment to apply prospectively unless otherwise stated.

PJ/CASE LAW/2015-16/2615

Case:- COMMISSIONER OF C. EX., TIRUNELVELI VERSUS SUNDARAM TEXTILES LTD.

Citation:-2014 (36) S.T.R. 30 (Mad.)

Brief facts:-These Civil Miscellaneous Appeals have been directed against the Final Orders passed in Appeal No. S/3/2006 and Appeal No. S/162/2005 in Final Order No. 655 of 2008, dated 4-7-2008 [2008 (11)S.T.R.608 (Tri.-Chen.)] and in Final Order No. 43 of 2008, dated 18-1-2008 [2008 (10)S.T.R.260 (Tri.-Chen.).
The respondent herein has been doing Textile Industry in Nanguneri and used to get service from a Japanese Company on intellectual property service. Under the said circumstances, the appellant herein has directed the respondent to pay a sum of Rs. 1,58,642/- towards Service Tax for the period started from 1999 to 15-8-2002 and the respondent has paid the same and subsequently, the show cause notice in question has been issued with regard to demand of interest as well as penalty under Section 76 of the Chapter 5 of the Finance Act, 1994 and the said demand has been confirmed in Order-in-Original passed on 25-4-2005. The respondent has filed Appeal No. 206 of 2005 before the Commissioner (Appeals), Tirunelveli wherein it has been specifically stated that the present appellant is not entitled to claim interest and penalty. However, it has been held to the effect that the amendment act is not applicable to the respondent and therefore, the respondent has no locus standi to question the payment of Service Tax. Against the orders passed by the Commissioner (Appeals) Appeal No. S/3/2006 and Appeal No. S/162/2005 have been filed before the Appellate Tribunal, Customs, Central Excise and Service Tax Appellate Tribunal (South Zonal Bench), Chennai.
The Appellate Tribunal, after hearing both sides, has given a specific finding to the effect that the respondent herein is not liable to pay Service Tax in view of the amendment made to Service Tax Rules, 1994 and also in view of the fact that the amendment has come into effect on 16-8-2002 and consequently, passed the impugned Final Orders and the same are being challenged in the present Civil Miscellaneous Appeals.

Appellant’s contention:- The learned counsel appearing for the appellant has contended that since the respondent has received service from a foreign company with regard to its business, the respondent is liable to pay Service Tax. Under the said circumstances, it has paid Rs. 1,58,642/- and therefore, the petitioner is also liable to pay penalty and interest under Section 76 of Chapter 5 of the Finance Act, 1994 and the Commissioner (Appeals) as well as Appellate Tribunal have not, considered the contention put forth on the side of the appellant in proper perspective and therefore, the Final Orders passed by the Appellate Tribunal are liable to be interfered with.

Respondent’s contention:- The learned counsel for the respondent has befittingly contended that the demand of Service Tax is related to the year 1999 to 15-8-2002 and the amendment to Service Tax Rules, 1994 has come into force on 16-8-2002, wherein a provision is made for payment of Service Tax in a case like this and the said amendment is not having any retrospective effect and therefore, for the period mentioned in the show cause notice, the respondent is not liable to pay service Tax. Under the said circumstances, the Final Orders passed by the Appellate Tribunal are not liable to be interfered with.

Reasoning of judgement:-It is seen from the records that the Service Tax in question is related to the year 1999 to 15-8-2002. It is also equally an admitted fact that amendment to Service Tax Rules, 1994 have come into effect on 16-8-2002. Only by way of amendment the liability to pay Service Tax, who receives service from Foreign Service holders is mentioned.
In the instant case, as stated earlier, the Service Tax in question is related to the year 1999 to 15-8-2002. The period in question is prior to 16-8-2002. Since the said period is prior to 16-8-2002, it is very clear that the respondent is not liable to pay Service Tax. Since the respondent is not liable to pay Service Tax, the respondent is also not liable to pay penalty as well as interest. The Commissioner (Appeals) as well as the Appellate Authority, after considering the date of amendment made to Service Tax Rules, 1994, have rightly rejected the claim of the appellant with regard to interest and penalty and also with regard to Service Tax. In the light of the discussion made earlier, this Court has not found any force in the contention put forth on the side of appellant and altogether, these Civil Miscellaneous Appeals are liable to be dismissed.
In fine, these Civil Miscellaneous Appeals are dismissed without costs. Consequently, connected Miscellaneous Petition is dismissed.

Decision:-Appeals dismissed.

Comment:-The respondent has received service from a foreign company with regard to its business, and so it was contended that the respondent is liable to pay service tax. However, the amendment to Service Tax Rules, 1994 has come into force on 16-8-2002. Hence, as the service tax demand in the present case pertained to period prior to 16.08.2002, it was held that the respondent is not liable to pay Service Tax, penalty as well as interest.

Prepared by:- Monika Tak

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PJ/CASE LAW/2015-16/2615

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