2008 (1) TMI 85

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....vt) Ltd. (against which the CEA No. 169 of 2006 has been filed). The facts are being taken from CEA No. 169 of 2006. 2. In the present case, M/s Onkar Travels (P) Ltd., respondent herein, is a holder of Certificate of Registration in Form ST-2 under Section 69 of the Finance Act, 1994 (hereinafter referred to as 'the Act') in the category of Air Travel Agent. The respondent had filed quarterly ST-3 returns for the quarter ending September, 1997, December, 1997, March, 1998, June, 1998, September, 1998 and half year ending March, 1999 with the jurisdictional Superintendent of service tax. All the ST-3 returns filed were assessed finally by the Superintendent of Service tax. Subsequently, a show cause notice was issued by the Deputy Commis....

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....he Commissioner (Appeals); when as per section 85 of the Finance Act "any person" does not include the department; has the opportunity for Rectification of Mistake & Revision (under this section) been taken? (ii) Whether the action of department i.e. issue of Show cause notice against improper/faulty assessment order and late decision was not in order? (iii) Whether inadvertent mentioning of Section 74 in place of Section 73 in the show cause notice can deprive the revenue of the legal demand when the Tribunal in the instant order has no where questioned this legality demand on any other ground?" During the course of arguments, learned Counsel for the appellant pressed only question No.(iii) and has submitted that actually, while g....

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....to recover the Service tax which has escaped the assessment and provision of Section 74 of the Act was fully applicable to the facts and circumstances of the case. She further submits that notice under Section 74 of the Act can be issued within two years of the date of order, therefore, the said notice was within limitation. Learned Counsel submits that throughout before the authorities below, the Department had taken the stand that the show cause notice was rightly issued under Section 74 of the Act as recourse can only be taken under Section 74 of the act for recovering the escaped Service tax at the time of assessment. The present stand that the revenue authorities initially mentioned the wrong provision in the show cause notice has been....