- (1.) In this Central Excise Appeal filed under Section 35G of the Central Excise Act, 1944, Mangalam Cement Limited is aggrieved by an order dated 30-5-2007 [: 2007 (7) S.T.R. 673 (Tri.-Del.)] passed by Customs, Excise and Service Tax Appellate Tribunal, Principal Bench, New Delhi, by which the appeal of the respondent-Department was allowed. However, the penalty in view of the fact that the assessee had pursued the matter in the writ petitions before Hon'ble Supreme Court, was waived. The amount under demand has been deposited, and thus, this appeal, is confined only for interest.
(2.) The Tribunal has, in its judgment under challenge, considered the judgment in Commissioner of Central Excise, Meerut-II v. L.H. Sugar Factories Ltd., 2006 3 STR 715 and distinguished it on the ground that after the decision in Gujarat Ambuja Cement Ltd. & Ors. v. Union of India, 2005 182 ELT 33, the subsequent decision in L.H. Sugar Factories Ltd., is relevant only in the context of law, as it stood prior to the validating provisions, the constitutionality of which was upheld by the Hon'ble Supreme Court in Gujarat Ambuja Cement Ltd. .
(3.) We find substance in the contention raised by learned counsel appearing for the appellant, that in the present case, the relevant date, as defined in sub-section (6) of Section 73 had to be with reference to Section 71A, and not under Section 71. In the present case, the appellant is a 'service recipient', and under Rule 2(d)(xii), it was liable to pay service tax for the period 16-11-1997 to 2-6-1998. The provision was struck down, on which a retrospective amendment was made, which was held valid by the Supreme Court in Gujarat Ambuja Cement Ltd. .;