9911796707
TMI Blog2006 (11) TMI 16X X X X Extracts X X X X X X X X Extracts X X X X ..... is appeal arises from Order-in-Original No. 1/2005 ST (Comm.) dated 19-12-2005 confirming Service Tax for the period 1-7-2003 to March 2005 in terms of show cause notice dated 28-7-2005 without invoking the proviso of amended Section 73 brought in 10-9-2004. The proviso to Section 73 is pari materia to Section 11A of CE Act. It is the contention of the appellant that as the show cause notice did n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... how cause notice should be applicable and not the earlier provisions. In this case, the earlier provision of Section 73 of the Finance Act provides for issue of notice for recovery of Service Tax for 5 years where there is failure on the part of the assessee to pay the Service Tax. The time limit has not been prescribed as is done in the amended Section 73 of the Finance Act. He further submits th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onfirmation of demand is justified. It is contended that although the proviso to Section 73 has not been invoked as the demands pertain to earlier period also, however, the show cause notice issued under the previous provisions of Section 73 is sustainable. The learned JDR argued on the above basis. 4.On a careful consideration, we are not agreeable with the contentions raised by the Commissioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be complied. The show cause notice has been issued in the present case on 28-7-2005, therefore, the amended provisions in terms of Section 73 of the Finance Act 2004 ought to have been invoked. The ingredients of proviso to Section 73 have not been invoked, therefore, the demands are barred by time. Furthermore, as held in the Atma Steel case (supra), the demands for the period earlier to promulg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... demands under different heading and category then the one alleged in the show cause notice. Therefore, the contention raised by the learned Counsel for non-confirmation of demands is justified. There is no basis for confirmation of demands and the order is not legal and proper. The impugned order is set aside by allowing the appeal with consequential relief, if any. (Pronounced in open Court on 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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