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TMI Blog2018 (5) TMI 1522X X X X Extracts X X X X X X X X Extracts X X X X ..... llant. In view of this clear cut finding of the Commissioner(Appeals), the extended period cannot be invoked in the present case. Demand barred by limitation - appeal allowed - decided in favor of appellant. X X X X Extracts X X X X X X X X Extracts X X X X ..... barred by limitation and the demand confirmed in the impugned order by invoking extended period of limitation is not sustainable in the facts and circumstances of the case. He further submitted that the Commissioner(Appeals) in the impugned order has not given any finding in respect of invocation of extended period of limitation. However while setting aside the penalty imposed under Section 78 of the Act, the learned Commissioner(Appeals) has observed that there is no suppression on the part of the appellant. He further submitted that once it has been admitted that there is no wilful suppression, fraud etc. on the part of the appellant for the purpose of setting aside the penalty imposed under Section 78 of the Act, the same finding will ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w cause notice for demand of Service Tax short- paid or not paid can be issued only under the provisions of sub-section (1) of Section 73. The proviso to the said sub-section does not form the basis for demand of Service Tax. The said proviso only has got the effect of fixing the time period of 5 years instead of 18 months for issue of show cause notice, if such short-payment is by any one of the reasons mentioned therein. As such, it is clear that any show cause notice issued by Central Excise officer for demanding Service Tax can be only in terms of Section 73(1). If the ingredients of proviso to the said sub-section is found to be not available in respect of any show cause notice, then apparently the adjudicating authority can restrict t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... demand for normal period also. 5. On the other hand, the learned AR reiterated the finding of the impugned order and submitted that cancellation of penalty and demand of extended period are different issues which are to be dealt with separately and by misinterpreting the wordings or law, no benefit can be extended to the appellant by holding that the demand is time barred. He relied upon the following decisions in support of his submission:- i. Press Matic Electro Stampings Pvt. Ltd. Vs. CCE, Pune-II [2018-TIOL-584-CESTAT-MUM] ii. CCE, Surat Vs. Electro Mech. Maintenance [2013(30) STR 103 (Tri. Ahmd.)] 6. After considering the submissions of both sides and perusal of material on record, I find that the entire demand in the present case ..... X X X X Extracts X X X X X X X X Extracts X X X X
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