2023 (7) TMI 106 - AT - Service Tax

Recovery of short paid duty alongwith interest and penalty - SCN received beyond the maximum period of 5 (five) years as prescribed under the proviso to section 73 of Finance Act 1944 - extended period of limitation - HELD THAT - The impugned Show Cause Notice was issued on 18th October, 2018 pursuant to an information received front the income tax department vide letter No.3381-3530 dated 07.06.2018 based on the said information the demand for the year 2013-14 and 2014-15 was being proposed vide the said Show Cause Notice of 2018. The further apparent fact from the earlier Final Order of this Tribunal dated 04.04.2022 is that it has already been held that the notice as was issued on 18.10.2018 was got served upon the appellant only on 25.09.2020. The order under challenge has been passed on 13.07.2022 pursuant to the directions vide the aforesaid Final Order dated 04.02.2022 to adjudicate the appeal based on the merits after providing the opportunity of hearing/representation to the appellant. In an earlier decision of this Bench in the case of M/s.Beno Prabhakar as brought to the notice by the ld. Counsel for the appellant, it was held that when it stands proved that SCN was not served upon the appellant within the statutory extended period the non-service thereof vitiates the entire demand. It is not merely the violation of principle of natural justice but the demand itself cannot sustain for it to be barred by time. Thus, it is held that the demand in question is not sustainable for the reason that the Show Cause Notice itself is barred by time as it could not be served upon the appellant within the maximum period of 5 (five) years - appeal allowed.

Summary

Issues involved:
The issues involved in the judgment are the timely service of the Show Cause Notice, the period of limitation for issuing the notice, and the sustainability of the demand based on the timelines prescribed under the Finance Act 1994.

Timely Service of Show Cause Notice:
The appellant contended that the Show Cause Notice, issued on 18th October 2018, was served beyond the maximum period of 5 years as prescribed under the proviso to section 73 of the Finance Act 1994. The appellant argued that the demand should be set aside on this ground. The appellant highlighted that they obtained registration under a bonafide belief of no liability before the investigation by the income tax department. The Commissioner (Appeals) was urged to consider the plea of demand being barred by time. The appellant cited relevant case laws to support their argument.

Period of Limitation for Issuing Notice:
The central issue revolved around the interpretation of section 73 of the Finance Act 1994, which specifies the period within which a Show Cause Notice must be served. The provision allows for an extended period of 5 years in cases involving fraud, collusion, wilful misstatement, suppression of facts, or contravention of provisions with intent to evade payment of service tax. The Tribunal emphasized the importance of timely service of the notice within the prescribed periods.

Sustainability of Demand Based on Timelines:
The Tribunal analyzed the provisions of the Finance Act 1994 to determine the sustainability of the demand raised in the Show Cause Notice. It was observed that the notice was served beyond the statutory period of 5 years, rendering the demand not sustainable. Citing precedent and legal principles, the Tribunal held that the demand must be set aside due to the non-service of the Show Cause Notice within the maximum period allowed by law. Consequently, the findings of the Commissioner (Appeals) were set aside, and the appeal was allowed on this basis.