IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION CENTRAL EXCISE APPEAL NO.70 OF 2007 Commissioner of Central Excise ..Appellant Versus M/s.Bhima SSK Limited ..Respondents ---- Mr.A.S.Rao with Mr.H.P.Chaturvedi for the appellant. Mr.V.S.Apte with Mr.A.A.Joshi for the respondents. ---- Coram : F.I.Rebello & Coram : F.I.Rebello & Coram : F.I.Rebello & R.S.Mohite,JJ R.S.Mohite,JJ R.S.Mohite,JJ Date : 14.2.2008 PC 1. Appeal has been preferred on the following questions of law :- (a) Whether in facts and circumstances of the case, the Tribunal is right in allowing the appeal of the Respondent relying upon the judgment of the Supreme Court in 187 ELT page 5 i.e. CCE Vs. L.H.Factories Limited ? (b) Whether in the facts and circumstances of the case, the Tribunal is right in holding that no show cause notice could have been issued against the Respondent u/Sec.73 of the Service Tax Act, as it stood on the date of issue of the notice by ignoring the legal positio envisaged U/Sec.116 and 117 of the Finance Act,2000, revalidating amendments to : 2 : Secs.65,66 and 67 of the first referred Act, Sec.158 of Finance Act,2003 and sub clause (xvii) of clause (d) of Sub Rule (1) of Rule 2 of Service Tax Rules, 1994 ? (c) Whether in the facts and circumstances of the case, the Tribunal is right in allowing the appeal filed by the Respondent and setting aside the demand of service tax in view of the revalidating amendments referred above as envisaged under Finance Act, 2000 and 2003 ? 2. In so far as question-(a) is concerned, the Tribunal was bound to follow the judgment of the Supreme Court considering the law declared under Article 141. The said judgment was binding on all Courts and Tribunals. Hence, the said question would not arise. 3. In so far as questions-(b) and (c) are concerned, the issue pertains to whether the amendments are prospective or retrospective. Learned Counsel relied on the judgment of the Supreme Court in Commissioner of Central Excise Commissioner of Central Excise Commissioner of Central Excise Meerut-II V/s. L.H.Sugar Factories Ltd., Meerut-II V/s. L.H.Sugar Factories Ltd., Meerut-II V/s. L.H.Sugar Factories Ltd., reported in 2005 (187) E.L.T. 5 (S.C.). The Supreme Court in that judgment agreed with a view taken by the Tribunal that the amended section 73 would not be : 3 : retrospective. 4. Learned Counsel draws our attention to the order passed in Commissioner V/s.L.H.Sugar Factories Ltd., Commissioner V/s.L.H.Sugar Factories Ltd., Commissioner V/s.L.H.Sugar Factories Ltd., reported in 2006 (4) S.T.R. J210 (S.C), in which case, the appeal was admitted. The law however, as declared in 2005 (187) E.L.T. 5 (S.C.) continues to be the law declared. Considering that, questions of law framed as (b) & (c) would not arise and consequently, appeal dismissed. (R.S.Mohite,J) (F.I.Rebello,J) (R.S.Mohite,J) (F.I.Rebello,J) (R.S.Mohite,J) (F.I.Rebello,J)