Custom, Excise & Service Tax Tribunal
M/S Prithvi Associates vs Commissioner Of Service Tax, Ahmedabad on 6 February, 2018
In The Customs, Excise & Service Tax Appellate Tribunal West Zonal Bench at Ahmedabad ~~~~~ Appeal No : ST/142/2009-DB (Arising out of Order-in-Appeal No. 10/2009(STC)/LMR/Commr.(A)/Ahd dated 27.1.2009 passed by Commissioner (Appeals) Central Excise & Service Tax - IV, Ahmedabad) M/s Prithvi Associates : Appellant (s) Versus Commissioner of Service Tax, Ahmedabad : Respondent (s)
Represented by:
For Appellant (s) : Shri S.J. Vyas, Advocate For Respondent (s): Shri A. Mishra, Authorised Representative CORAM:
Dr. D. M. Misra, Honble Member (Judicial) Mr. Raju, Honble Member (Technical) Date of Hearing/Decision: 06.02.2018 Order No. Per: Dr. D. M. Misra Heard both sides.
2. This is an appeal filed by the appellant against Order-in-Appeal No. 10/2009(STC)/LMR/Commr.(A)/Ahd dated 27.1.2009 passed by Commissioner (Appeals) Central Excise - IV, Ahmedabad.
3. Briefly stated facts of the case are that the appellant was providing services to various State/Central Government organizations, which was alleged to be falling under the taxable category of Advertising Services. Accordingly, a show-cause notice was issued on 22.10.2007 demanding Service Tax of Rs.8,31,652/- for the period 2002-03 to 2005-06. On adjudication, the demand was confirmed with interest and penalty. Aggrieved by the said order, the appellant filed an appeal before the Commissioner (Appeals), who in turn, rejected the appeal of the appellant.
4. At the outset, learned Counsel for the appellant does not dispute the leviability of Service Tax. However, he vehemently argued that the present demand notice is barred by limitation, as on similar issue, invoking extended period of limitation, that is, for the period 1997-98 to 2001-02, Service Tax demand notice was issued. Therefore, the present SCN issued for the period 2002-03 to 2005-07 invoking extended period of limitation on 22.10.2007 cannot be sustainable in view of the judgment of the Hon'ble Supreme Court in the case of Nizam Sugar Factory Vs.CCE, A.P. 2006 (197) ELT 465 (SC).
4. Learned AR for the Revenue, on other hand, submits that even after delivery of the judgment of this Tribunal, the appellant company continued, the same practice, and not discharged the Service Tax, even though they have not challenged the order. Thus, it amounts to mis-declaration and hence invoking of larger period is correct in law.
5. Heard both sides and perused the records.
6. We find that undisputedly on the issue of non-payment of service tax on provision of advertising service to Government Departments, SCN was issued to the appellant and on similar issue for earlier period, SCN was also issued and adjudicated. It is also not in dispute that both the SCNs were issued invoking extended period of limitation i.e. allegation of suppression of facts, mis-declaration etc. It is the contention of the learned Advocate for the appellant that since the first demand notice was issued invoking extended period, alleging suppression second demand notice invoking extended period is bad in law. In support, he takes shelter of the ratio laid down by the Hon'ble Supreme Court Nizam Sugar Factory Ltds case (supra). Therefore, analysis of the Nizam Sugar Factorys is relevant to consider whether second SCN is barred by limitation. The circumstances, before the Hon'ble Supreme Court as observed in the said judgement reads as follows: -
5.?The Department had issued a Show Cause Notice (for short the SCN) to the appellant on 28-2-1984 demanding duty for the period February, 1978 to September, 1982 on the production of impure Carbon dioxide emanating as a by-product during the process of fermentation of molasses in the appellants factory. It was alleged that the assessee had cleared the said carbon dioxide without payment of duty to another unit in contravention of Rule 9(1) of the Central Excise Rules, 1944 (for short the Rules) and without obtaining licence for manufacture of carbon dioxide in their factory; without filing Classification/Price List and without maintaining accounts. Appellant in its reply dated 19-3-1994 relying on some earlier decisions contended that impure carbon dioxide was not exigible to duty. The case was heard on 16-4-1984 and thereafter no further action was taken in the matter.
6.?Appellant was served with a second SCN by the Collector on 16-7-1987 alleging that the appellant was supplying carbon dioxide to another unit as per agreement dated 19-3-1983; that they had not taken necessary licence; had not followed the procedure prescribed under the rules; and had not discharged duty liability. The said SCN covered the period of assessment years 1982-83 to 1986-87. Appellant responded to the second SCN and took the plea that the SCN under consideration was practically a repetition of the allegations contained in the SCN dated 28-2-1984 and for the period April, 1982 to September, 1982 the department had raised demands under two different SCNs. It was pointed out that carbon dioxide in the impure form was not marketable as it also contained carbon monoxide in lethal proportions. It was contended that they were under bona fide belief that since such impure carbon dioxide was not exigible to payment of duty, they were not required to file either Classification List or the Price List or take out licence. It was submitted that resorting to extended period of limitation under Section 11A(1) was not justified in the circumstances of the case. Appellant was served with the third SCN on 12-9-1988 for the period 16-3-1988 to 27-6-1988 on the same allegations. Assessee filed its reply in terms of the earlier replies i.e. reply to SCN dated 16-7-1987. The adjudicating authority did not accept the appellants contention and the demands raised in the SCN were confirmed. The Hon'ble Supreme Court after analysing the issue observed in para 9 as follows: -
9.?Allegation of suppression of facts against the appellant cannot be sustained. When the first SCN was issued all the relevant facts were in the knowledge of the authorities. Later on, while issuing the second and third show cause notices the same/similar facts could not be taken as suppression of facts on the part of the assessee as these facts were already in the knowledge of the authorities. We agree with the view taken in the aforesaid judgments and respectfully following the same, hold that there was no suppression of facts on the part of the assessee/appellant. 6.1 We find that the facts and circumstances in the present case is more or less similar to the facts discussed in the above said case and the principles laid down by the Hon'ble Supreme Court in Nizam Sugar Factory (supra), thus applicable to present case. Applying the principle, we find that the appellant could establish a case on limitation. Accordingly, we have no hesitation to hold that the demand is barred by limitation.
7. In result, the impugned order is set aside and appeal is allowed.
(Dictated and pronounced in the Court) (Raju) (D. M. Misra) Member (Technical) Member (Judicial) Sinha 4 Appeal No. ST/142/2009-DB