9911796707
TMI Blog2024 (11) TMI 56X X X X Extracts X X X X X X X X Extracts X X X X ..... er the impugned order. The late fee for such delay in filing cannot be disputed. In view of the above levy of late filing fees in case where there is delay in filing the returns cannot be faulted with. - HON BLE MR. P. K. CHOUDHARY , MEMBER ( JUDICIAL ) And HON BLE MR. SANJIV SRIVASTAVA , MEMBER ( TECHNICAL ) Shri Nitin Sharma , Advocate for the Appellant Shri A. K. Choudhary , Authorized Representative for the Respondent ORDER SANJIV SRIVASTAVA : This appeal is directed against Order-in-Appeal No.92-ST/APPL/LKO/2023 dated 01.02.2023 passed by Commissioner (Appeals) Customs, CGST Central Excise, Lucknow. By the impugned order in original No.45/ADC/ST/Agra/2022-23 dated 24.06.2022 holding as follows has been upheld:- ORDER (i) I hereby confirm the demand of Service Tax amounting to Rs.53,43,481/-(Rupees Fifty Three Lakh Forty Three Thousand Four Hundred Eighty One Only)(inclusive all cess) in lieu of providing the taxable services in the F.Y. 2015-16 to 2017-18 (Up to June, 2017), upon the noticee i.e. M/s. Brainpower HR Management Private Ltd., 308, 3rd Floor, Padam Business Park, 12A, Avas Viaks Sikandara, Agra under the proviso to section 73(1) of the Act read with Section 174 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e heard Shri Nitin Sharma, Advocate for the Appellant and Shri A. K. Choudhary, Authorized Representative for the Revenue. 4.1 We have considered the impugned order along with the submissions made in appeal and during the course of arguments. 4.2 For invoking extended period of limitation original authority observed as follows: 26. Later on keeping an eye on disclosure of evasion of service tax by the Noticee for F.Y.2014-15 as discussed in above para, the Noticee had been pursued by the department rigorously to submit their financial records/data as to verify their service tax liability for the subsequent period i.e. 2015-16 to 2017-18 (upto June, 2017) as discussed in the impugned Show Cause Notice. In response the Noticee on 04.02.2020 which is after the date of issuance of SCN for F.Y. 2014-15, submit their financial data. On its perusal it has come to knowledge of the Department that the Noticee has received huge amount in lieu of providing taxable services during the impugned period but did not disclose the same in service tax returns filed with the department. It is seen that the taxable value as per third balance sheet/26AS is far higher than that of shown in service tax re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .06.2017 being time barred, I find that the impugned show cause notice could have been issued for the relevant period upto 30.12.2020 in terms of CBIC Notification dated 30.09.2020 issued vide F. No 450/61/2020-Cus.IV(Part-1) and hence, the impugned SCN was issued well within the stipulated time. Thus impugned order by referring to CBIC Notification dated 30.09.2020 finds that the show cause notice was issued well within the normal period of limitation. However the said observation is made by calculating the normal period of limitation wrongly. The above notification was issued by the CBIC following the decision of Hon ble Supreme Court in suo motto writ petition No.3/2020, in wake of the conditions that have arisen on account of COVID. However the entire demand was barred by limitation on the date when the said notification was effective from and could not have been revived by this notification. 4.4 It is settled law that subsequent show cause notice could not have been issued by invoking extended period of limitation. Even for the previous period where the show cause notice has been issued invoking extended period of limitation and the demands were confirmed holding that extended ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... actory v. Collector of Central Excise, A.P. [2008 (9) S.T.R. 314 (S.C.) = 2006 (197) E.L.T. 465 (S.C.)]. The Department had issued a show cause notice dated February 28, 1984 demanding duty for the period February, 1978 to September, 1982. A second show cause notice dated July 16, 1987 was again issued for the period 1982-83 to 1986-87. A plea was taken by the Appellant, in response to the second show cause notice, that the allegations made in the second show cause notice were practically a repetition of the allegations made in the first show cause notice and so the invocation of the extended period of limitation was not justified. A third show cause notice dated September 12, 1988 for the period March 16, 1988 to June 27, 1988 was also issued on the same allegations. The Appellant again filed a reply on the same lines as was filed to the second show cause notice. The adjudicating authority, however, did not accept the plea and the demands raised in the show cause notices were confirmed. Appeals were filed before the Tribunal relating to the second and the third show cause notices. It was contended before the Tribunal that the extended period of limitation could not have been invok ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to 1988 and further, they had dropped the proceedings accepting that M/s. Pharmachem Distributors was not a related person. It is, therefore, futile to contend that there has been suppression of fact in regard M/s. Pharmachem Distributors being a related person. On that score, we are unable to uphold the invoking of the proviso to Section 11A of the Act for making the demand for the extended period. This judgment was followed by this Court in the case of ECE Industries Limited v. Commissioner of Central Excise, New Delhi reported in (2004) 13 SCC 719 = 2004 (164) E.L.T. 236 (S.C.). In para 4, it was observed : 4. In the case of M/s. P B Pharmaceuticals (P) Ltd. v. Collector of Central Excise reported in [2003 (2) SCALE 390], the question was whether the extended period of limitation could be invoked where the Department has earlier issued show cause notices in respect of the same subject-matter. It has been held that in such circumstances, it could not be said that there was any wilful suppression or mis-statement and that therefore, the extended period under Section 11A could not be invoked. Similarly, this judgment was again followed in the case of Hyderabad Polymers (P) Ltd. v. ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
