2017 (4) TMI 153

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....of Section 65 (76a) readwith Section 65 (24) and 65 (105) (zzt) of the Finance Act, 1994. Proceedings were initiated against the respondent for non-payment of service tax for the period 2005- 2006 to 2009-2010 (upto September 2009) by way of show cause notice dated 05/08/2010. the case was adjudicated by the Original Authority confirming a service tax liability of Rs. 34,19,170/-. Penalty equal to the tax amount, under Section 78 and further penalties under Sections 77 and 70 were also imposed. On appeal, vide the impugned order, the Commissioner (Appeals) held that the demand for extended period is not sustainable. He restricted the demand of service tax to the period August 2009 and September 2009, to an amount of Rs. 1,31,362/-. He accor....

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....y issue of second show cause notice dated 05/08/2010. The impugned order recorded the following observation :- "I have perused the show cause notice dated 18/05/2007 and also the Order-in-Original dated 08/10/2007 and find that earlier STTF Wing of the department had initiated the enquiry/investigation against the appellant and in pursuance to this the appellant was issued summon dated 27/11/2006 for appearance and production viz. copy of all bills raised to customers since 10/09/2004, month wise details of payment received from customers, copies of contract/agreement and balance sheet for the year 2004-2005 and 2005-2006. I also find that the appellant had provided all these documents, which is evident from para 5 of the show caus....

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....be permitted. Accordingly, such demand for period upto October 2006, is not sustainable and liable to be set aside. 5.2 The appellants yet another argument is that since their activity about provision of service was in the knowledge of the department which is evident from the earlier show cause notice dated 18/05/2007, which was also adjudicated by an order-in-original dated 08/10/2007, subsequently show cause notice for recovery of service tax cannot be issued by invoking extended period of limitation. Since, the subsequent show cause notice dated 05/08/2010 which is under consideration, has been issued by invoking extended period, the same is barred by limitation. In this context I find that during earlier enquiry, in his stateme....

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.... in agreement with the contention of the Revenue on the legal position. As recorded in the impugned order, an investigation was conducted against the respondent by calling for details of contract, agreement, balance sheet etc. which resulted in the issue of first show cause notice. The material facts, of the nature of service rendered by the appellant, the tax liability on such services were all in the knowledge of the Department. Timely follow up was not done for subsequent periods and that cannot be the basis for issuing another demand invoking suppression of fact etc. Following the ratio laid down by the Hon'ble Supreme Court in Nizam Sugar Factory (supra), we find that the decision of the Commissioner (Appeals) on this issue cannot be a....