TMI Blog2019 (1) TMI 1437X X X X Extracts X X X X X X X X Extracts X X X X ..... t of the said taxes relying entirely on preceding adjudication for an earlier period. Obviously, the provision is to be invoked in restrictive circumstances and cannot, by any stretch, be a substitute for resorting to section 73(1) in each and every subsequent period. The jurisdictional Commissioner has traversed beyond referring to the demand for the preceding period to record the changes effected in consequence of taxation in the negative list and has drawn upon the authority of Article 265 of the Constitution. This is clearly in excess of the circumstances contemplated in the newly incorporated artifice and sufficing to vitiate the impugned order. The tax regime had altered since period covered by the order relied upon in the prese ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ai -II in order-in-original no. 62/ST/RM/SCL/M-II/13-14 dated 18th August 2014 following which tax of ₹ 1,30,39,712/-, along with interest thereon, and penalty under section 76 of Finance Act, 1994 on service rendered from April 2013 to March 2014 was held to be recoverable under section 73(1) of Finance Act, 1994 through the device of 'demand-cum-penalty' authorized by section 73(1A) of Finance Act, 1994. The former has been challenged in separate proceedings during the pendency of which the order impugned herein was issued. 3. We have heard Learned Authorized Representative also at length. 4. One puzzling aspect of the impugned order is that it combines both a final determination of the tax for the disputed period on t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for the subsequent period, on the person chargeable to service tax, then, service of such statement shall be deemed to be service of notice on such person, subject to the condition that the grounds relied upon for the subsequent period are same as are mentioned in the earlier notices. was intended to avoid superfluous repetition of proceedings in the circumstances stated therein. On examination of letter no. 334/1/2012-TRU dated 16th March 2012 of the Government of India in Department of Revenue, we find that the incorporation of this exception to the general requirement for notice and opportunity for prospective application, in the light of tax regime alteration, is explained thus ii. A new sub-section (1A) is being inserted to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oes not meet that requirement. Consequently, there is no service and no taxability, 9. The tax regime had altered since period covered by the order relied upon in the present 'demand-cum-penalty notice' and the impugned order goes beyond mere reference to the earlier order to adjudicate, without notice and opportunity, the applicability in the transformed tax regime. The facts and circumstances of the transactions themselves are found to be vastly dissimilar. We find, in consequence, that section 73 (1A) of Finance Act, 1994 is not invokable and the deficiency in invoking section 73(1) of Finance Act, 1994 is irreparable. Therefore, we set aside the impugned order and allow the appeal. (Pronounced in Court on 11/01/2019) - ..... X X X X Extracts X X X X X X X X Extracts X X X X
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