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2018 (12) TMI 1786 - AT - Service TaxClassification of services - transport of goods by road service - supply of the tangible goods service - it has been alleged that the assessee has provided goods transport agency service to air force station at Jodhpur, however, they have not discharged their service tax liability on the same - time limitation - HELD THAT:- The show cause notice mentioned at Sl. No. (i) and one mentioned at Sl. No. (iii) are both hit by period of limitation because previously also the appellant has been issued a show cause notice No. V (ST)/SCN/759/JDR/07/307 dated 29 March 2007 which was adjudicated by the order-in-original No. 583/ST/2009-10 dated 12 July 2010 wherein a demand under the goods transport agency service was confirmed against the appellant and same was dropped by the Commissioner (Appeals) holding that the activity undertaken by the appellant does not qualify to be classifiable under the goods transport agency service. These facts were undoubtedly in the knowledge of the department and the department still chose to issue a show cause notice dated 09/10/2012 covering a period from 2007-2008 to 2011-2012 by invoking the extended time proviso under Section 73 of the Finance Act, 1994 and again classifying the activity undertaken by the appellant under the Goods Transport Agency Service. The department has been aware about the activity of the appellant since very beginning and, therefore, we do not find any justification in invoking the extended time proviso under Section 73 of the Finance Act, 1994 - Secondly, since the issue of the classification of the activity undertaken by the appellant have already been decided by the Commissioner (Appeals) as we have been told there is not appeal against the said order, we feel that the subordinate officers should have shown some sense of discipline and would have respected the findings of the Commissioner (Appeals) while deciding the matter. The Commissioner (Appeals) need to take all the three show cause notices for consideration at a time and issue is pertaining to the classification of the service on the basis of the documents available in the adjudication file of the department as well as with the appellant need to be scrutinized to reach at a conclusion as to whether the appellant is providing supply of the tangible goods service or goods transport agency service - since the issue have been before the department since 2007 when the first show cause notice which was adjudicated vide the order-in-original No. 583/ST/2009-10 dated 12 July 2010 which has also been decided by the Commissioner (Appeals) subsequently, the legal maintainability of the show cause notices need to be examined in view of above fact whether same are barred by period of limitation as per the provisions of Section 73 of the Finance Act, 1994 or not. Matters remanded to Commissioner (Appeals) for re-adjudication of all the three matters - appeal allowed by way of remand.
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