2012 (11) TMI 788

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..... notice dated 14.02.2007 issued to the respondent, the original authority confirmed against them demand of service tax of Rs. 1,08,739/- along with demand of education cess of Rs. 844/-, ordered payment of interest thereon and imposed penalties on the assessee. Aggrieved, the assessee preferred an appeal to the Commissioner (Appeals) and the latter set aside the demands on the ground of limitation without examining the merits of the demands. In the present appeal filed by the department, it is contended that the show-cause notice was issued within five years (extended period of limitation) from the relevant date defined under Section 73 (1) of the Finance act 1994 and that the extended period was invoked on valid grounds. In this connection, .....

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..... the assessee. If that date is reckoned, the show-cause notice issued on 14.02.2007 is within the extended period of five years. As the assessee suppressed the material facts with obvious intent to evade payment of service tax, the larger period of limitation was rightly invokable in this case. On this ground also, it is argued, the appellate Commissioner s order is liable to be set aside. 3. On a perusal of the records, I have found no reply to the show-cause notice. The order-in-original indicates that certain written submissions were filed by them before the adjudicating authority vide para 14 of the order but there is no indication of any plea of limitation having been raised by the assessee. Whether a demand of duty/tax is barred by l .....

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..... by way of remand to the Commissioner (Appeals) with a request for fresh decision on the assessee s appeal on merits in accordance with law and the principles of natural justice. On the question whether limitation could be lawfully pleaded for the first time by the assessee before the first appellate authority, the learned Commissioner (Appeals) shall hear both sides with due notice. Needless to say that, in the event of this issue being held in favour of the assessee/appellant on legally sustainable grounds, the plea of limitation shall be examined with reference to relevant date defined under Section 73(1) of the Finance Act 1994 and in the light of applicable case law.   (Pronounced and dictated in open Court)
Case laws, Decisio .....

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