Commissioner of Service Tax vs The Peoples Choice

Dilip B. Bhosale, J.—This Central Excise Appeal is basically directed against the order dated 20.10.2010 rendered by the Customs, Excise and Service Tax Appellate Tribunal (for short ''Tribunal'') South Zonal Bench, Bangalore, whereby the Tribunal set aside the order dated 19.09.2006 passed by the Commissioner of Service Tax, Bangalore, in Order-in-Original No. 57/2006.

We have heard learned counsel for the parties for some time and with their assistance gone through the relevant provision so as to consider the basic question "whether the proceedings initiated in respect to the period prior to the amendment by invoking the provision before amendment is vitiated after the amendment?" This question was framed at the stage when the appeal was admitted on 16.09.2011.

Admittedly, show cause notice was issued by the Assistant Commissioner of Service Tax, Service Tax Division-1, Bangalore, on 06.10.2004 calling upon the respondent to show cause as to why the service tax amounting to Rs. 79,43,346/- on the gross amount of Rs. 15,95,08,866/- realised by them, for security services rendered for the period from 16th October 1998 to 31st March 2004, on which service tax had not been discharged, but had become payable u/s 68 of the Finance Act, 1994 (for short ''Act'') as amended, should not be demanded under the provisions of Section 73(1)(a) of the Act, invoking the extended period of limitation, and why it should not be recovered u/s 73(2)(a) of the Act. The service tax, according to the appellants, was under the provisions of Section 73(1)(a) of the Act.

The provisions contained in Section 73(1)(a) of the Act were substituted vide Finance Act, 2004 with effect from 10.09.2004. The provision prevailing prior to 10.09.2004 was providing for value of taxable services escaping assessment, while after its substitution vide Finance Act, 2004, it provided for recovery of service tax not levied or paid or short-levied or short-paid or erroneously refunded. Admittedly, on the date of show cause notice i.e., 06.10.2004, the provisions contained in Section 73(1)(a) of the said Act, prevailing prior to 10.09.2004, were not in existence. In other words, the statutory provision under which the show cause notice issued was not in existence as on that date. The provision as on 06.10.2004 prevailing was inserted vide Finance Act, 2004 with effect from 10.09.2004 i.e., prior to 06.10.2004 on which date the show cause notice was issued. The Tribunal, on this ground, negated the contentions raised by the appellant. We do not find any reason to interfere with the same in view of the admitted facts, as aforementioned. Hence, we dismiss this appeal. Dismissal of the appeal, however, shall not preclude the appellant from proceeding against the respondent, in accordance with law.