2007 (8) TMI 95 - AT - Central Excise

Appeal before Commissioner(A) - Appellant contended that demand was barred by limitation hence not sustainable but learned SDR reject the contention - Stay application is allowed and the case is remitted to Commissioner for a decision on merits of dispute

Summary

Issues:
Service tax demand and penalty - Pre-deposit requirement - Sustainability of demand - Limitation period for demand - Validity of demand under extended period.

Analysis:

The appeal before the Appellate Tribunal CESTAT, New Delhi involved a stay petition concerning a service tax demand and penalty. The Commissioner had rejected the appeal as the appellants failed to make the pre-deposit as ordered. The Counsel for the appellants argued that the demand was not sustainable and was barred by limitation, citing the judgment of the Hon'ble Supreme Court in a specific case. The demand was raised under a show cause notice dated 21-5-2004 for tax due in 1998, which exceeded the extended period permitted by law for exceptional cases involving fraud, etc.

The learned SDR contended that the demand should be considered as raised during the normal period and was valid based on a previous Tribunal decision in another case. The Tribunal had considered the Supreme Court's decision cited by the appellants while passing the said order. However, a review of the record revealed that the demand was raised by invoking the extended period, indicating that the demand was not sustainable under the normal period. Moreover, the Supreme Court had upheld the Tribunal's decision on limitation in a similar case, taking into account the amendment of law under the Finance Act, 2003.

Considering the circumstances, the Tribunal opined that the Commissioner should assess the merits of the dispute without requiring any pre-deposit. Consequently, the stay application was allowed, and the case was remitted to the Commissioner for a decision on the dispute's merits without insisting on a pre-deposit. The order was dictated in the open court, emphasizing the Tribunal's decision on the matter.