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2019 (3) TMI 449 - AT - Service TaxWithdrawal of SCN and issuance of fresh SCN for the same period - time limitation - Held that:- We do not understand how the department could withdraw the show cause notice and issue a fresh SCN case for the very same period. The Larger Bench in the case of Agauta Sugar Chemicals [2010 (9) TMI 16 - CESTAT, NEW DELHI] has considered the validity of show cause notice issued and adjudicated after the amendment in 2003 / 2004. It did not discuss a situation in which a fresh show cause notice is issued, where already show cause notice is pending. On perusal of the adjudication order, we do take note of the fact that the adjudicating authority has started the order by stating that the proceedings arise out of show cause notice dated 30.8.2001. However, in the operative portion, it is stated by him that this show cause notice stands abated and treated as withdrawn due to issuance of the show cause notice dated 27.10.2004. Show cause notice dated 27.10.2004 is also on the similar set of facts as alleged in the earlier show cause notice. The only allegation of suppression made in the show cause notice is that the appellant did not file returns and did not pay tax. When there is no liability on the service recipient the appellant could not have been expected to file returns or pay tax. There is no positive act of suppression brought out from the facts or evidence placed - there are no ingredients for invocation of extended period and therefore the demand cannot sustain. Appeal allowed - decided in favor of appellant.
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