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TMI Blog2025 (3) TMI 1062X X X X Extracts X X X X X X X X Extracts X X X X ..... the declaration made by the declarant under the Scheme was "substantially false", he may serve notice in respect of such declaration requiring him to show cause why he should not pay the amount not paid or short paid. In this case, the date of declaration is clearly and admittedly 31.12.2013 when the appellant had filed their Declaration bearing no. 1500/2013 dated 31.12.2013 for an amount of Rs. 37, 59, 354/-. When was the notice served on the declaration in respect of such declaration? - HELD THAT:- In this case, as per the factual and admitted position, the notice was served only on 02.01.2015. Further, even though the terms used is serve in the Section 111(1), it has to be covered in terms of statutory provisions cited, supra. Even going by other actions namely issuance of show cause notice, as well as pasting of notice on the factory premises etc., it would not amount to serving of the notice in view of various case laws cited by the appellant. Therefore, the Department has clearly failed to serve the notice within the time limit permissible as per the provisions under Section 111 of Finance Act and therefore any subsequent proceedings including confirmation of demand on t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al built-up area and 7, 200 sqft of commercial built-up area along with proportionate undivided share of land was given to the above 3 partners as settlement of capital. Further, the retiring partners agreed to pay an amount of Rs. 600 per sqft towards construction work to be done post that date on the built-up area allotted to them. The retired partners were paying service tax on sale of flats allotted to them, if sold before OC. Appellant did not pay service tax initially on the above consideration on the bonafide belief that the same would not attract service tax. However, after the introduction of VCES, 2013, appellant filed a declaration dated 31.12.2013 declaring tax dues of Rs. 37, 89, 354/- for the period October 2010 to December 2012 on consideration received from retired partners for completion of work (construction done after retirement). Department vide summons dated 03.12.2014 requested to provide the information and documents. Vide letter dated 08.12.2014 and 29.12.2014, Appellant furnished the required information. Thereafter, impugned show cause notice dated 30.12.2014 was served by post on 02.01.2015 proposing to demand service tax on the area allotted to the retir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection 111 of Central Excise Act - no action shall be taken under sub-section (1) after the expiry of one year from the date of Declaration. The wordings in the Section are one year from the Declaration and not 365 or 366 days from the Declaration. Hench, I am of opinion that, in this case the one year expires by 31.12.2014 and not by 30.12.2014. Further, even if we count the limitation in days - as per Section 12 of the Limitation Act, 1963, in computing the period of limitation for any suit, appeal or application, the day from which such period is to be reckoned, shall be excluded. On this count also their argument is defeated. Further, as per Section 37C of Central Excise Act, the date of sending the Notice by Registered Post is to be taken as the date of service of Notice. It is admitted by the assessees that the Notice was pasted on their premises on 31.12.2014 and also the Notice was sent by Registered Post on 31.12.2014. As both the above procedures of serving of notice are permitted to be valid under the provisions of Section 37C of Central Excise Act, 1944 read with Section 83 of Finance Act, 1994 and both the procedures were complied with by the Department, I am of view t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 12.2014 itself. Thus, no action like issuance of SCN under Section 111(1) of Finance Act 2013 can be taken after the expiry of one year from the date of declaration. 8. It has been also argued by Learned Counsel for the appellant that if orders or notices are not validly served as per the mechanism provided under the law, it shall be treated as non-serving in law. Affixing of notice on wall shall not be considered as serving of notice unless it is shown that notice could not be served by post and that there is a direction for the same from the authority issuing notice. The last page of the impugned show cause notice under signature of Adjudicating Authority is clear that it was directed to be served to the appellant by Registered Post only. However, it is unclear from the record as to how and under whose authority, said mode was ordered for affixing the SCN at the premises. No other particular mode of service was ordered by Adjudicating Authority and therefore whatever mode of serving was clearly prescribed, same must be complied with by the Department. 9. In this regard, Section 37C of the Central Excise Act, 1944 is also relevant i.e. "37C. Service of decisions, orders, summo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... leted on delivery in post office is not correct. No scope of presumption in taxing matter. In this case, since show cause notice issued after expiry of one year, therefore, no benefit can be given. He further relied on Co-ordinate Bench order in the case of Trans Global Agencies Pvt Ltd., Vs Commissioner of Central Excise, Daman [2009 (245) ELT 757 (Tri-Ahmd)] in respect of mode of delivery of impugned order, wherein, Tribunal held that order served by Department by pasting in factory and drawing panchanama as factory was closed, was not correct. In this case, affixing copy in factory, was possible only if order could not be served through registered post with acknowledgment due. Whereas, in the present case, impugned order did not show that order was first sent by registered post with acknowledgment due but could not be served. He has also relied on Hon'ble Guwahati High Court judgment in the case of Real Time Technology Vs Cestat, Kolkata [2019 (29) GSTL 238 (Gau)] in which it is held that when a particular mode of service was ordered by Adjudicating Authority, same has to be complied notwithstanding the availability of any other prescribed in law. In this case, notice was to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , he may serve notice in respect of such declaration requiring him to show cause why he should not pay the amount not paid or short paid. However, there is a caveat in the said provision that no action shall be taken under Section 111 of the Finance Act 2013 after the expiry of one year from the date of declaration. In this case, the date of declaration is clearly and admittedly 31.12.2013 when the appellant had filed their Declaration bearing no. 1500/2013 dated 31.12.2013 for an amount of Rs. 37, 59, 354/-. Therefore, the next question is when was the notice served on the declaration in respect of such declaration. In this case, as per the factual and admitted position, the notice was served only on 02.01.2015. Further, even though the terms used is serve in the Section 111(1), it has to be covered in terms of statutory provisions cited, supra. Even going by other actions namely issuance of show cause notice, as well as pasting of notice on the factory premises etc., it would not amount to serving of the notice in view of various case laws cited by the appellant. Therefore, the Department has clearly failed to serve the notice within the time limit permissible as per the provisio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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