TaxTMI 
TaxTMI 
2018 (12) TMI 1296
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....8 is identical and arising out of common impugned order and similarly, appeal No. St/701/2008 is only against imposition of penalty by the Commissioner vide his order dt. 06/10/2008, all the appeals are taken up together for final disposal, 2.1. Briefly the facts of the present case are that the appellant is a holder of Service Tax registration for providing taxable services under the category of Security Agency services. They were proceeded against by the officers of the then Directorate of Central Excise Intelligence (DGCEI), Bangalore for evasion of service tax in respect of Security Agency services provided by them. after the conclusion of investigation, a show-cause notice dt. 19/10/2006 was issued by the Addl. Director General, DGCEI, Bangalore requiring the appellant to show-cause as to why i. An amount of Rs. 1,79,69,071/- being the service tax payable by them, collected by not paid, on the security agency's services rendered by them for the period from April 2001 to March 2006 should not be demanded from them under the provisions of Section 73 read with Section 73A of the Act. ii. An amount of Rs. 66,06,843/- being the service tax paid by them during the investigati....
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.... sides and perused records. 3.1. Learned counsel for the appellant submitted that the impugned orders are not sustainable in law as the same have been passed without properly appreciating the facts and law. He further submitted that the binding judicial precedents have not been followed by the learned Commissioner while confirming the demand in the impugned orders. He further submitted that there is no dispute about the fact that the appellants had been proceeded against by the Department in 2004 through the issuance of the show-cause notice dt. 09/08/2004 alleging suppression of facts and demanding service tax of Rs. 40,90,811/- for the period 1998-99 to 2003-04. He further submitted that the said show-cause notice was issued after extensive investigation in the form of verification of the balance sheets of the company for the years 1998-99, 1999-2000, 2000-01, 2001-02 and 2002-03 and bills/invoices raised by the company for the period November 1998 to March 2004. The said show-cause notice was adjudicated by the Assistant Commissioner of Central Excise, Service Tax Division, Bangalore vide Order-in-original No.44/2004 dt. 18/08/2004 wherein the service tax amount of Rs. 40,90,81....
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.... were available with the Department during December 2003 itself and therefore it was not open for the Department to allege in the second show-cause notice suppression or concealment of facts for the purpose of invoking the extended period of limitation under Section 73. He also submitted that the deficiencies in the investigation or raising demand in the first show-cause notice cannot be made so good in the second show-cause notice alleging suppression of facts. In support of this submission, he relied upon the decision of the Apex Court in the case of Nizam Sugar Factory Vs. CCE [2006(197) ELT 465 (SC)] wherein it was held that when the first show-cause notice was issued and all the relevant facts were in the knowledge of the authorities; that later on, while issuing the second and third show-cause notices, the same/similar facts cannot be taken as suppression of facts on the part of the assessee as these facts were already in the knowledge of the Department. He further relied upon the decision in the case of ECE Industries Ltd. Vs. CCE, New Delhi [2004(164) ELT 236 (SC)] wherein it was observed that "In the case of M/s P&B Pharmaceuticals (P) Ltd. Vs. CCE report in [2003(2) SCALE....
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....like housekeeping services and supply of manpower such as driver which were not taxable till June 2005. He further submitted that the finding of the learned Commissioner that the appellant had collected service tax and not paid is without any basis whereas the Managing Director of the appellant in his statement has categorically stated that ST means statutory taxes like ESI, PF, service tax, gratuity etc. He also submitted that the imposition of penalty on the Managing Director and Joint Director invoking the proviso to Sections 76, 77 and 78 is wrong and unsustainable because the period of demand is April 2001-March 2004 whereas Section 78A providing for imposition of personal penalty in respect of non-payment of service tax was introduced vide Finance Act, 2013 w.e.f. 10/05/2013 and this provision is prospective in nature cannot be retrospectively applied. He further submitted that the quantification also made by the Commissioner is erroneous and has stated that actually service tax payable by the appellant is far less than what has been confirmed by the Commissioner. 4. On the other hand, the learned AR defended the impugned order and submitted that the Commissioner after consi....