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TMI Blog2023 (7) TMI 106X X X X Extracts X X X X X X X X Extracts X X X X ..... unal 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 pri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he said proposal was confirmed by Order-in-Original No. 259 dated 16.10.2019. The appeal thereof has been rejected vide Order-in-Appeal No. 236 dated 12.7.2021 on the ground of it being barred by period of limitation. Being aggrieved the appellant filed the appeal No.51027/2021 before this Tribunal. The said appeal was decided vide Final Order No.50173 of 2022 dated 4th February, 2022 holding as follows:- 10. In view of the above discussions , it is held that appeal filed before the Commissioner (Appeals) was filed within two months of date receipt of Order-in-Original by the appellant. Commissioner (Appeals) has wrongly held the same to be barred by time. Accordingly, the order under challenge is hereby set aside. Keeping in view that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o Registration in the year 2016 that is even prior the investigation by the income tax department could have been initiated. The present proceedings are based upon the information provided by the income tax department. It is impressed upon that Commissioner (Appeals) has failed to consider the plea of demand as such being barred by time. The order is accordingly, prayed to be set aside. Appeal is prayed to be allowed. 5. Ld. Counsel has laid reliance upon the following case laws:- 1. Tip Top Plastic Industries Vs. CCE [2006 (197) E.L.T. 398 (Tri.-Bang.) 2. Flora Marmo Industries Pvt. Limited vs. Commissioner of Cus., Kandla [2019 (367) ELT 682 (Tri.-Ahmd.)] 3. Ram Nivas Singh Contractor vs. Commissioner of C.Ex. S.T., Allahaba ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 8. I observe that while complying with the said direction, Commissioner (Appeals) has received the representation from the appellant dated 04.04.2022. The perusal thereof reveals that the only ground raised by the appellant with respect to adjudication on merits is that the Show Cause Notice has not been served upon the appellant within the maximum period of 5 (five) years. The demand as such was pleaded as being barred by time. To adjudicate the said submission, as a submission on merits, section 73 of the Finance Act 1994 is perused. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of circumstances as given in the proviso, as mentioned above, the service of notice may be extended to the period of 5 (five) years. Two important aspects are apparent from this section: (1) It is the service of notice which is relevant for computing the period either of 30 months or the extended period of 5 (five) years. (2) The period during which Show Cause Notice can be issued for whatsoever reason, cannot be more than 5 (five) years. 10. In an earlier decision of this Bench in the case of M/s.Beno Prabhakar (supra) 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 vitiate ..... X X X X Extracts X X X X X X X X Extracts X X X X
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