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TMI Blog2019 (7) TMI 1422X X X X Extracts X X X X X X X X Extracts X X X X ..... r three long years for issuing the second show cause notice for the same issue that too by invoking the extended period. It is legally unsustainable. Undisputedly, the second show cause notice dated 22/4/2013 was issued covering the period October, 2008 to March, 2009 and September, 2009 to October, 2009 by invoking the extended period. The first/earlier show cause notice dated 08/10/2010 was issued to the Apellants covering the missing interregnum period of the second show cause notice i.e. April, 2009 to August, 2009, therefore the fact about non-payment of Service tax by the Appellants was within the knowledge of the department. In view of these facts the extended period could not have been invoked in the second show cause notice. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... M/s Vishal Retail Ltd.(i.e. the licensee ). An inquiry was initiated against the Appellants and a show cause notice dated 22/04/2013 was issued for payment of ₹ 9,27,000/- for the period October 2008 to March, 2009 and September, 2009 to October, 2009 with interest under Section 75 of the Finance Act, 1944 and penalties under sections 76 78 ibid respectively. The said show cause notice was adjudicated by the Additional Commissioner, Service Tax-III, Mumbai vide Order-In-Original dated 22/03/2016 by which the total demand of Service Tax of ₹ 9,11,550/- was confirmed with interest and penalty under Section 78 ibid. On Appeal filed by the Appellants, the Ld. Commissioner vide impugned order dated 13/03/2018 upheld the adjudicat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2010 and that it is only when Finance Bill, 2010 amended the definition of taxable services for renting of immovable property service, it was made applicable with retrospective effect. Since there was confusion amongst the member of retailer association, of which the lessee was also one of the members, the said lessee did not make the payment of Service Tax to the Appellant and therefore the Appellants have not discharged the same to the Government. In support of its claim the ld. Counsel refer the copies of ST-3 Returns for the period October, 2008 to March, 2009 and September, 2009 to October, 2009 which he has filed alongwith the Memo of Appeal. According to him, this cannot be considered as suppression by the Appellant and therefore th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e first show cause notice was issued, then why the department waited for three long years for issuing the second show cause notice for the same issue that too by invoking the extended period. It is legally unsustainable. Undisputedly, the second show cause notice dated 22/4/2013 was issued covering the period October, 2008 to March, 2009 and September, 2009 to October, 2009 by invoking the extended period. The first/earlier show cause notice dated 08/10/2010 was issued to the Apellants covering the missing interregnum period of the second show cause notice i.e. April, 2009 to August, 2009, therefore the fact about non-payment of Service tax by the Appellants was within the knowledge of the department. In view of these facts the extended per ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch make it clear that 14. the question whether M/s. Pharmachem Distributors was a related person has been the subject-matter of consideration of the Excise authorities at different stages, when the classification was filed, when the first show cause notice was issued in 1985 and also at the stage when the second and the third show cause notices were issued in 1988. At all these stages, the necessary material was before the authorities. They had then taken the view that M/s. Pharmachem Distributors was not a related person. If the authorities came to the conclusion subsequently that it was a related person, the same fact could not be treated as a suppression of fact on the part of the assessee so as to saddle with the liability of duty for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... period under Section 11A could not be invoked. Similarly, this judgment was again followed in the case of Hyderabad Polymers (P) Ltd. v. Commissioner of Central Excise, Hyderabad reported in [ 2004 (166) E.L.T. 151 (S.C.)]. It was observed in para 6 : .......... On the ratio laid down in this judgment it must be held that once the earlier Show Cause Notice, on similar issue has been dropped, it can no longer be said that there is any suppression. The extended period of limitation would thus not be available. We are unable to accept the submission that earlier Show Cause Notice was for a subsequent period and/or it cannot be taken into consideration as it is not known when that Show Cause Notice was drop ..... X X X X Extracts X X X X X X X X Extracts X X X X
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