2010 (11) TMI 410 - AT - Service Tax

Demand along with interest and penalty - Appellants have paid the service tax along with interest on 22nd March 2004 and the show cause notice for invoking the extended period has been issued on 4-10-2006 which is beyond the extended period of statutory period of one year - Appellants submitted that the show cause notice is barred by limitation - Appellant has took this ground before the Commissioner (Appeals) also but the Commissioner (Appeals) has not considered the contention of the appellant - The matter needs examination at the end of Commissioner (Appeals) to decide whether the show cause notice is barred by limitation or not - Hence, after setting aside the impugned order the matter is sent back to the Commissioner (Appeals) first to decide the limitation issue if the appellant succeeds on limitation issue - If the appellant failed to succeed on limitation, then he will the all merit of the case - Thus, the impugned order is set aside and the appeal is allowed by way of remand.

Summary

Issues:
1. Bar on limitation of show cause notice for service tax demand.
2. Merits of the case regarding service tax payment.

Analysis:
1. The appeal was filed against the order confirming the service tax demand, interest, and penalty. The appellant contended that the show cause notice was time-barred. The appellant filed their service tax return for a specific period on 24-10-2003. Subsequently, they received a query from the department regarding the amount paid, which was clarified by the appellant on 4th February 2004. The service tax amount was paid on 22nd March 2004. However, a show cause notice was issued on 4-10-2006 for a different period. The appellant argued that the notice was beyond the statutory period of one year, as the duty for the disputed period had already been paid and queried earlier.

2. The advocate emphasized that the department was aware on 24-10-2003 that the duty for the disputed period had not been paid, and the payment was made on 22nd March 2004. The show cause notice issued on 4-10-2006 was considered beyond the extended statutory period. The judgment highlighted that the Commissioner (Appeals) did not address the limitation contention raised by the appellant. Therefore, the matter was remanded back to the Commissioner (Appeals) to decide on the limitation issue. If the appellant succeeded on the limitation issue, the merits of the case would not be addressed. However, if the appellant failed on the limitation issue, then the Commissioner (Appeals) would proceed to consider all merits of the case.

In conclusion, the impugned order was set aside, and the appeal was allowed by way of remand for the Commissioner (Appeals) to first determine the limitation issue.