TaxTMI 
TaxTMI 
TaxTMI 
2025 (6) TMI 14
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....nterest and equivalent penalty imposed under Section 78 of the Act as well as a penalty of Rs.10,000/- imposed under Section 77 of the Finance Act. 2. Briefly stated, the facts are that the appellant is engaged in providing accounting and payroll services to their associated enterprise M/s Executive Ship Management Pte Singapore (ESM Pte). The appellant is registered with Service Tax department under Service Tax Registration No.AAFCB2123BSD001. The appellant and ESM Pte are group companies belonging to ESM Holdings Hong Kong (ESM Holdings). Based on Intelligence that the appellant has not paid service tax on the accounting and payroll services provided by them to their associated enterprise ESM Pte, by claiming the same as export of services, Officers of Directorate General of GST Intelligence (DGGI), Chennai commenced their investigation, conducted search proceedings as well as recorded statement from the chartered accountant of the appellant. It was observed that M/s. ESM Pte has entered into contracts with various ships / Ship Owners and ESM Pte is engaged in providing ship crew recruitment and management services to these ships/ Ship Owners. ESM Pte has appointed the appellant....
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....ed the conditions of Rule 6A(1)(d) and 6A(1)(f) of the Service Tax Rules, 1944, the services rendered by the appellant to ESM Pte cannot be treated as "export of services" and hence the appellant is liable to pay service tax on the services provided by them. The department further held the view that the above facts regarding the non payment of Service Tax on the taxable services provide by the appellant came to the notice of the department only when conducting the investigation and the appellant appears to have suppressed relevant and vital facts from the department with malafide intention to evade service tax. In view of the above, the department issued Show Cause Notice No. 18/2020 dated 23.06.2020 invoking extended period of limitation. The appellant replied contesting the demands and after due process of law, the adjudicating authority passed the Order in Original No.29/2021-JC dated 13.08.2021 confirming the demand of Service Tax along with appropriate interest and equivalent penalty imposed under Section 78 of the Act as well as a penalty of Rs.10,000/- imposed under Section 77 of the Finance Act. Aggrieved by the said OIO, the appellant preferred an appeal before the Appella....
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....the vessel owners as manager for the purposes of rendering ship management and crew management services. (c) ESS Pte in turn uses the services rendered by ESM Pte to render technical management and crew management services to the ships/shipping lines in terms of the ship management agreement entered into with them. 7. Thus, the Ld. Counsel submits, while both ESS Pte and ESM Pte are engaged in providing technical management and crew management services, the Appellant merely renders one part of only one aspect of such services Le, accounting and payroll services. 8. In his written submissions, the Ld. Counsel depicted the flow of services and the services performed by each entity as under: 9. The services rendered by the Appellant were governed by Service Agreement of 2013 and Service Agreement of 2016. The coverage of services under both agreements are tabulated as under: Particulars Service Agreement between the Appellant and ESM Pte (2013) Service Agreement between the Appellant and ESM Pte (2016) Agreement Service Agreement dt. 1st April, 2013 Service Agreement dt. 1st April, 2016 Parties ESM Pte and the Appellant ESM Pte and the Appellant Duties of the....
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....vouchers with respect to expenses incurred by ESM Pte or any other nominated by ESM Pte. 7. To prepare and provide various accounting reports to ESM Pte as per list below: a. Statement of accounts including Trial Balances/ Balance Sheet b. Variance reports c. Settlement reports like quarterly, semiannually, annually d. Estimated expenses reports e. Statement of Lub Oil purchased, consumed and closing stock f. Reports for variance insurance claims like P & I, H & M etc. 8. To retain the copies of the reports and supporting of the expenses for a period mutually agreed between both the parties and provide them upon request by ESM Pte. Fees and Payment for Services Applicable Costs plus 8.70% and plus taxes, if any Applicable Costs plus 6.50% and plus taxes, if any 10. The Ld. Counsel submits that from the above it is evident that ESM Pte is in the business of rendition of technical management and crew management services, it had appointed the Appellant to independently provide accounting and payroll related services in terms of the Service Agreement. The accounting and payroll related services are rendered entirely by the Appellant to ESM Pte and do not amount to....
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.... ESS Pte/ship owners and in such circumstances, it cannot be said that the appellant is arranging or facilitating the underlying supply of goods/services from vendors to ESM Pte or from ESM Pte to ESS Pte/Ship owners. The Appellant is bound to earn its monthly income, even if ESM Pte Singapore does not earn any income from its clients. It is settled position that in cases where consideration is charged as cost plus mark up, the assessee does not act as an intermediary as the services had no direct nexus with the underlying supply. Reliance is placed on the decisions in Verizon India Pvt Ltd v CST, 2021 (45) GSTL 275 (Tri-Del) and Lubrizol Advanced Materials India Pvt Ltd v CCE, Belapur, 2019 (22) GSTL 355 (Tri-Mumbai). 13. It is a well-established position that ESM Pte. and the Appellant are two separate legal persons and not establishment of a single legal person. In view of the above extract, it is evident that a subsidiary and a holding company or group companies are not covered by the abovementioned provision and therefore, do not fall under the ambit of 'distinct persons'. 14. In this regard, reliance also placed on Linde Engineering India Pvt. Ltd. vs. Union of India - 2022....
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.... Goods and Service Tax, Mumbai East, 2023 (4) TMI 1074-CESTAT MUMBAI and Black Rock Service India Private Limited v Commissioner of CGST. 17. The Ld. Counsel further submits that the Adjudicating Authority has erred in holding that the services provide by the appellant are not export of services as both the appellant and ESM Pte are merely establishment of distinct persons. It is submitted that the appellant and the ESM Pte are company registered under separate laws and have their own individual identity. That the appellant and ESM Pte are not direct holding and subsidiary companies, but even in case if such a relationship exists, where the holding company directly controls 100% of the subsidiary, there are judicial precedents wherein it has been undeniably held that even in case of holding and subsidiary companies the explanation (b) to Section 65B(44) would not be applicable for the reason that the two entities are separate companies. That in the present case the appellant and ESM Pte are not even holding and subsidiary companies but are rather group companies, operating independently, with independent management, operations, and decision making and there cannot be any instance ....
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....r the period from 1st July 2017 and governed by service agreement, 2016 as well as in the case of group companies rendering other services sub-contracted by ESM Pte, namely, in respect of ESM India by Final order No.A/85492/2024 dated 14.05.2024 in Service Tax Appeal No.86879 of 2021 in the case of Executive Ship Management Pvt Ltd v Comr. of CGST & CE, Navi Mumbai; the Joint Commissioner of CGST & Central Excise, Thane Commissionerate vide Order No.61/AKS-10/TH-CGST/2024-25 dated 11th July, 2024 has held that services rendered by a group company NKPS were not intermediary services and would be treated as export of service under GST and that GST authorities have also granted refund at various instances through GST refund orders and the Additional Commissioner of GST & Central Excise, Chennai vide Order in Original No.21/2025-DGGI (ADC) dated 17.01.2025 has in the Appellant's own case held that accounting and payroll services provided by it would not qualify as 'intermediary' service and would be treated as export of service under GST and all the ruling had inter-alia also relied upon the ruling in SNQS International Socks Private limited (Trading Division) cited supra. 21. The Ld.....
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....ant and the basis of its claim of exemption and therefore the invoking of extended period of limitation is unjustified. 24. Ld. Counsel further submitted that even otherwise the scope of intermediary is a matter of interpretation and is a contentious issue and the question of alleging mala fide does not arise. Reliance is place on the decision M/s. Sunrise Immigration Consultants Pvt. Ltd. vs Commissioner of Central Excise and Service Tax, Chandigarh [2018-TIO-1849-CESTAT-CHD], LANXESS ABS Ltd. vs Commissioner [2010(259) ELT 551 (Tribunal)]. The Ld. Counsel says that the appellant was under bona fide belief as regards the non-taxability and place reliance on the decisions in Commissioner of Customs vs. Reliance Industries Limited (2015 (325) E.L.T. 223 (S.C.). 25. He further submits that for the reasons that the impugned order has failed to bring out any malafide or wilful intention on the part of the appellant, penalty is also not imposable and places reliance on decisions in Collector vs. Tin Plate Co. of India Ltd. (1996 (87) EL.T. 589. (S.C.), S. N. Sundersons (Minerals) Ltd. us. Supt. (Preventive), C. Ex. 1995 (75) ELT 273 (M.P.) and LANXESS ABS Ltd. vs. Commissioner 2010 (2....
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.... in the statue connote an agency when one person acts on behalf of the other. The former acts as an agent of the latter. An agency is the relationship of principal and agent in terms of a contract - express or implied. The Ld. AR submits that it is the matter of record that clauses after clauses in the duties of Appellant as per Contract refers to "On behalf of". Ld. A.R. contended that the Appellant is under obligation to act on behalf of, to act on approval of, to act upon request of, to liase on behalf of Main service provider. 30. The Ld. AR submits that the issue of non-fulfilment of condition laid down in Rule 6A(1)(d) has been discussed by the Adjudicating Authority. Place of provision of Intermediary Service is the location of Service Provider and in instant case, service provider is located in India and therefore, place of provision is within India. In view of above, as per Rule 6A of Service Tax Rules,1994, since place of service for such activities being in the nature of intermediary services is not outside India, such services cannot be treated as export of service. The Ld. AR submits that the issue of condition laid down in Rule 6A(1)(f) has been discussed by the Adju....
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....n on merits the issues that arise for consideration are whether the appellant is an intermediary as defined in Rule 2(f) of the Place of Provision of Services Rules, 2012 ( POPS Rules) and also whether the services rendered by the Appellant to M/s. ESM Pte can be treated as Export of Services as per Rule 6A of the Service Tax Rules, 1994 (STR Rules)? 35. When a plea that the demand is wholly barred by limitation is raised, we find it apposite to deal with the said issue first. The question of limitation goes to the root of the matter and involves a question of jurisdiction to raise the demand itself in the first instance. This in turn is premised on the provisions of law that prescribe the situations as well as the attendant ingredients thereto that attract its application. The findings of fact on the question of jurisdiction would be a jurisdictional fact. Such a jurisdictional question therefore needs to be examined and is to be determined having regard to both the facts and law involved therein. To appreciate whether the demand is wholly barred by limitation, it would therefore be appropriate to reproduce section 73(1) of the Finance Act,1994 as it stood at the relevant time. T....
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.... the case of taxable service in respect of which service tax has not been levied or paid or has been short-levied or short-paid- (a) where under the rules made under this Chapter, a periodical return, showing particulars of service tax paid during the period to which the said return relates, is to be filed by an assessee, the date on which such return is so filed; (b) where no periodical return as aforesaid is filed, the last date on which such return is to be filed under the said rules; (c) in any other case, the date on which the service tax is to be paid under this Chapter or the rules made thereunder; (ii) in a case where the service tax is provisionally assessed under this Chapter or the rules made there under, the date of adjustment of the service tax after the final assessment thereof; (iii) in a case where any sum, relating to service tax, has erroneously been refunded, the date of such refund." (emphasis supplied) 39. The provisions of Section 73, save for a variation in the normal period, when it was one year as opposed to thirty months in the provision as reproduced above, came up for consideration before the Honourable Delhi High Court in Bharat Hotels Ltd ....
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....terpreted as given in Sections 28 of the Customs Act, 1962 (hereinafter referred to as "the Customs Act") and 11A of the [Central] Excise Act, 1944 (hereinafter referred to as "the Excise Act"). In order to determine if the same interpretation extends to Section 73 of the Act the following decisions of the Supreme Court have to be looked at. In the case of Uniworth Textiles Ltd. v. Commissioner of Central Excise, Raipur [(2013) 9 SCC 753 = 2013 (288) E.L.T. 161 (S.C.)] the Supreme Court discussed its previous judgments to determine the applicability of the proviso to Section 28 of the Customs Act for extension of limitation period for issuing notice for payment of duties that have not been levied, short-levied or erroneously refunded. The relevant paragraphs of the judgment are excerpted below : "9. The show cause notice was issued on 2-8-2001, more than six months after the appellant had imported furnace oil on behalf of Uniworth Ltd. in January, 2001. This time period of more than six months is significant due to the proviso to Section 28 of the Act. The Section, at the relevant time, read as follows : 28. Notice for payment of duties, interest, etc. - (1) When any duty has....
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....e two sections lies in the insertion of conditions of 'fraud' and 'contravention of any of the provisions of this Chapter or of the rules made thereunder with intent to evade payment of Service Tax' in Section 73 of the Finance Act, 1994. In Uniworth (supra), the Supreme Court discussed the interpretation of the proviso of a similar provision in Section 11A of the Excise Act and held that it is pari materia to the proviso to Section 28 of the Customs Act. The relevant paragraphs are excerpted below : "13. This Court, in Pushpam Pharmaceuticals Co. v. Collector of Central Excise, Bombay [1995 Supp (3) SCC 462], while interpreting the proviso of an analogous provision in Section 11A of The Central Excise Act, 1944, which is pari materia to the proviso to Section 28 discussed above, made the following observations : xxxxxx xxxxxx xxxxxx 18. We are in complete agreement with the principle enunciated in the above decisions, in light of the proviso to Section 11A of the Central Excise Act, 1944. However, before extending it to the Act, we would like to point out the niceties that separate the analogous provisions of the two, an issue which received the indulgence of this Court in A....
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....5. Though it was sought to be contended that Section 28 of the Customs Act is in pari materia with Section 11A of the Excise Act, we find there is one material difference in the language of the two provisions and that is the words "with intent to evade payment of duty" occurring in proviso to Section 11A of the Excise Act which are missing in Section 28(1) of the Customs Act and the proviso in particular.... 56. The proviso to Section 28 can inter alia be invoked when any duty has not been levied or has been short-levied by reason of collusion or any wilful misstatement or suppression of facts by the importer or the exporter, his agent or employee. Even if both the expressions "misstatement" and "suppression of facts" are to be qualified by the word "wilful", as was done in the Cosmic Dye Chemical case while construing the proviso to Section 11A, the making of such a wilful misstatement or suppression of facts would attract the provisions of Section 28 of the Customs Act. In each of these appeals it will have to be seen as a fact whether there has been a non-levy or short-levy and whether that has been by reason of collusion or any wilful misstatement or suppression of facts by t....
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....in reference to the same subject." [United Society v. Eagle Bank, (1829) 7 Connecticut 457, p. 470, as cited in CRAIES, Statute Law, p. 134 (7th Edition)]. The provisos to Sections 11A of the Excise Act, 28 of the Customs Act and Section 73 of the Finance Act, refer to the same class of persons, i.e., persons from whom tax has been not been levied, or has been short-levied or erroneously refunded. The subject matter of these provisos is issuance of a Show Cause Notice in order to collect such tax. Further, there seems to be no difference in language of the proviso to Section 11A of the Excise Act and Section 73(1) of the Finance Act. Since, the pith and substance of both these provisions is the same, the various judgments of the Supreme Court discussing the interpretation of proviso to Section 11A of the Excise Act can be extended to interpret Section 73(1) of the Finance Act. Further, since proviso to Section 28 of the Customs Act is pari materia to proviso to Section 11A of the Excise Act (as held in Uniworth), the interpretation of proviso to Section 28 may also be extended to interpret the proviso to Section 73 of the Finance Act. Uniworth (supra) is also authority on the meani....
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....tention to evade duty must be proved for invoking the proviso to Section 11A(1) for extended period of limitation. It has been further held that intent to evade duty is built into the expression "fraud and collusion" but misstatement and suppression is qualified by the preceding word "wilful". Therefore, it is not correct to say that there can be suppression or misstatement of fact, which is not wilful and yet constitutes a permissible ground for invoking the proviso to Section 11A. 25. In case of Pushpam Pharmaceuticals Co. v. C.C.E. [1995 (78) E.L.T. 401 (S.C.)], this Court has held that the extended period of five years under the proviso to Section 11A(1) is not applicable just for any omission on the part of the assessee, unless it is a deliberate attempt to escape from payment of duty. Where facts are known to both the parties, the omission by one to do what he might have done and not that he must have done does not constitute suppression of fact." 26. Again, the Supreme Court in Continental Foundation Joint Venture Holding v. Commissioner of Central Excise, Chandigarh-I [(2007) 10 SCC 337 = 2007 (216) E.L.T. 177 (S.C.)], held that : "10. The expression "suppression" has....
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....t, during the enquiry itself, it paid Service Tax on the sale of the above-mentioned items for the periods 2004-05 and 2005-06 with interest and had also started paying Service Tax on these items regularly from April, 2006. The same has been also acknowledged by the DGCEI in the SCN. 29. As regards management, maintenance and repair services the appellant claimed that it was unaware of the development under Section 65(105)(zzg) of the Finance Act and that when the same came to the knowledge of the appellant, the appellant promptly got itself registered for the said service and started discharging its Service Tax liability with respect to the said service from financial year 2006-07, and also paid Service Tax for the financial year 2005-06. The same has again been also acknowledged by the DGCEI in the SCN. The absence of any material disclosing intent to evade payment of Service Tax by the appellant is evident by the fact that it promptly made all the payments pertaining to Service Tax liability with respect to Mandap Keeper Service and Management, Maintenance and Repair Service as soon as the appellant became aware of the same (during the enquiry) and continued to pay Service Tax....
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.... acted in error or ignorance, it could not be an excuse as held in the case of D. Cowasji [1978 (2) ELT J154 (SC)] that "We are not quite sure that if the maxim that everyone is presumed to know the law is applied, there will be any case of payment under a mistake of law unless that presumption is rebutted in the first instance, for, the moment it is assumed that everyone is presumed to know the law, it is clear that no one can make a mistake as to the law. It is sometimes said that every man is presumed to know the law, but this only a slovenly way of stating the truth that ignorance of the law is not in general an excuse (See Frederick Pollock, " Jurisprudence and Legal Essays", p.89" Therefore in the absence of any positive volition on the part of the appellant to get clarification on the nature of services rendered by them, their pleadings of error, interpretation etc are just an afterthought. Also the pleading of appellant as to their 'bonafide belief' also fails as they are aware of chargeability of otherwise to service tax. They had taken service tax registration and declared the income under export of service. The appellant is all along performing functions like re....
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....ructions issued by the Central Board of Excise & Customs (CBEC) not only every ER-1 return filed by an assessee is required to be scrutinized by the RO for correctness of rate of duty applied to the goods cleared, arithmetical accuracy of duties/amounts dues and payable; Cenvat credit availment, valuation etc., this scrutiny must be completed within 3 months and the returns of the units whose annual duty payment is Rs. 1 crore to Rs. 5 crores and more than Rs. 5 crores, are also to be cross checked by the Assistant Commissioner and Additional Commissioner, respectively. (1) Circular No. 249/83/96-CX., dated 11-10-1996 (para 3); (2) Circular No. 311/27/97-CX., dated 15-4-1997 (regarding maintenance of register of scrutiny and reporting progress of scrutiny of ER-1 returns in monthly Technical Report being sent to the Board.) (3) Circular No. 818/15/2005-CX., dated 15-5-2005 issued by C.B.E.& C. under Rule 12(3) of Central Excise Rules, 2002 prescribing two stage scrutiny of ER-1 and ER-3 returns - preliminary scrutiny and detailed scrutiny as per detailed check list prescribed for this purpose. 7.2 From the above Circulars of the C.B.E. & C. regarding scrutiny of ER-1 return....
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....not satisfied in this case." (emphasis supplied) 44. We are of the view that allowing the assessee to self-assess the tax is a mere facility extended to the assessee. That in no way detracts or dilutes the statutory responsibility of the jurisdictional central excise officers to ensure correctness of the assessment, exemptions claimed and duty payments made. In the instant case, on a perusal of the ST-3 returns available as part of the Appeal records, we find that in the ST-3 returns filed regularly, the Appellants have, under PART B, titled "VALUE OF TAXABLE SERVICE AND SERVICE TAX PAYABLE", against B1.8 titled the "amounts charged against export of service provided or to be provided", duly indicated the amounts in respect of each month in the appropriate place provided for such declaration. The appellant has also indicated in the respective rows thereafter, pursuant to the said particulars indicated in the ST 3 returns, the total amount claimed as deduction, the consequent net taxable value as well as the service tax payable in the appropriate rows and columns as was necessary. Therefore, we are of the considered view that the aforesaid responsibility of the jurisdictional depar....
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....ot disclosing the said fact. For invoking the longer period of limitation, there has to be a suppression or mis-statement with an intent to evade payment of duty. When the respondents have reflected the amount of credit availed by them in their monthly returns, it cannot be said that there was any positive act of suppression on misstatement on their part. As such, we are of the view that Commissioner (Appeals) has rightly held a part of the demands as barred by limitation. 46. There is a catena of decisions in similar vein wherein, various High Courts as well as this Tribunal, have consistently held that when the assessee is registered and filing returns regularly, the range officer had a duty to scrutinize returns and detect any irregularity and to raise pertinent queries in this regard and that in the light of any negligence or failure to do so, the allegation of suppression by the assessee cannot be countenanced. To cite a few, apart from those cited above, the decisions in Jagadamba Power & Alloys Ltd v CCE, Jaipur, 2025(391) ELT 478 (Chhattisgarh) affirmed in CCE v Jagadamba Power & Alloys Ltd, 2025 (391) ELT 465 (SC), Swastik Engineering v CCE, Bangalore, 2010 (255) ELT 261 ....
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.... of the Department, wherein he has stated that the appellant has not paid Service Tax because the appellant considered the services as "Export of Services" since the service recipient, namely, M/s. ESM Pte Singapore is abroad and the appellant has received the money in foreign convertible currency. For reasons best known to the authorities, these returns have not been scrutinised as and when filed, or if scrutinized, has not excited them enough to embark on any inquiry within the normal period so as to raise a tenable demand, if any, on the appellant. When it is the responsibility of the jurisdictional departmental officers to scrutinize the returns filed reflecting the information of amounts towards export service provided and service tax payable indicated by the appellant, any failure on their part to take up the information for scrutiny can neither be condoned to the detriment of the appellant, nor would it then justify invoking of the extended period of limitation by the Department. It is also pertinent to note that the Honourable Apex Court in Uniworth Textiles Ltd v CCE, Raipur, 2013 (288) ELT 161 (SC), has held as under: "24. Further, we are not convinced with the finding ....
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....case the appellant has a doubt about taxability of the service "the appellant should have approached the department for clarification" but failed to do so and therefore the appellant had deliberately avoided payment of Service Tax, suppressed the fact of non-payment of Service Tax and therefore imposition of penalty under Section 78 is valid. The order of the appellate authority is equally misconceived as there is no provision for an assessee to seek advisory opinion from departmental officers nor is any statutory provision brought to our notice which authorises departmental officers to provide advice on interpretation of provisions of the Act; assessment of transactional facts qua the provisions of the Finance Act, 1994 and provide guidance on taxability or otherwise. The perception of the learned appellate Commissioner that every departmental officer is a sui generis advance ruling authority is a misconception that has no legislative basis."(emphasis supplied) The said view has recently been reiterated in the decision of the Principal Bench of this Tribunal in Commissioner of Central Excise Commissionerate v. K.K.Gupta Construction Pvt. Ltd, (2024) 17 Centax 353 (Tri-Del). 51.....
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....s. The present matter covers the dispute period from October 2014 to June 2017 whereas the SCN was issued only on 23.06.2020. The appellant had filed Service Tax returns for this period on 18.07.2015, 21.10.2015, 22.04.2016, 24.10.2016, 24.04.2017 and 14.08.2017 respectively as is evidenced by the ST-3 returns. As per Section 73(6)(i) (a), where a periodical return, showing particulars of service tax paid during the period to which the said return relates, is to be filed by an assessee, the date on which such return is so filed, is the relevant date. Therefore, given that the returns for the relevant period under dispute is from October 2014 to June 2017, when the date of filing of the last return for the said period is 14.08.2017, the normal period of thirty months would come to an end by February 2020. In the aforesaid circumstances when the invoking of extended period of limitation was not available to the Department considering the fact that the appellant had declared the amounts received as towards export of service in the ST 3 returns and the said fact was in the knowledge of the department, therefore, the SCN issued on 23-06-2020 is beyond the normal period of limitation and....
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....uestions of law have been framed, the following question has been pressed at the hearing : "Whether the Tribunal having held that proceedings were barred by limitation and proceedings were liable to be quashed on the ground of limitation, the Tribunal committed an illegality in deciding the question on merits. Hence is the finding of Tribunal on merits liable to be set aside?" 21. The appeal is admitted on the following question of law and is by consent taken up for final hearing. 22. The Tribunal came to the conclusion that the demand by the Revenue was beyond the period of limitation of one year prescribed under Section 73(1) of the Finance Act, 1994 and that the period of five years could not have been invoked. That part of the judgment of the Tribunal has been confirmed in the companion appeal. Once that be the position and the Tribunal having come to the conclusion that the extended period of limitation could not have been validly applied, the Tribunal, in our view, acted outside its jurisdiction in entering upon the merits of the dispute on whether the demand for duty should be confirmed. Once it is held that the demand is time barred, there would be no occasion for the....
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.... into the merits of the appeal filed by the assessee and passed an adverse order. Before the Allahabad High Court, one of the substantial questions of law raised by the assessee, was when the Tribunal having held that proceedings were barred by limitation, has committed any illegality in deciding the question on merits. Whether the finding of the Tribunal on merits, is liable to be set aside?" 12. While addressing the above said substantial question of law, decision of the Hon'ble Supreme Court in State Bank of India v. B.S. Agricultural Industries reported in (2009) 5 SCC 121, has been pressed into service, wherein, the Hon'ble Supreme Court had an occasion to deal with a situation, where the consumer forum held that the complaint was barred by limitation, but nonetheless had proceeded to decide the issue on merits. Dealing with the issue, which is similar to the case on hand, at Paragraph 12, the Hon'ble Supreme Court in State Bank of India's case (cited supra), held as follows :- "12. As a matter of law, the consumer forum must deal with the complaint on merits only if the complaint has been filed within two years from the date of accrual of cause of action and if beyond the....