9911796707
TMI Blog2010 (5) TMI 313X X X X Extracts X X X X X X X X Extracts X X X X ..... gency' in terms of rule 2(1)(d)(v) of Service Tax Rules, 1994 as a recipient of the said services. During the years 2002-03 and 2003-04, the appellants were found to have rendered taxable services falling under the category "Clearing and Forwarding Agent" without following the statutory formalities including payment of service tax due. After due process of law, the Commissioner confirmed a demand of Rs. 1,01,722 from the appellants along with applicable interest and imposed penalty on them at the rate of Rs. 100 per day subject to a maximum of the tax demanded for the period of default under section 76 of the Finance Act, 1994 ('the Act') and penalty of Rs. 1,000 under section 77 of the Act. The original authority had rejected the contentio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for the purpose of issue of show-cause notice had to be computed from the date on which service tax was to be paid as per the provisions of the Act or the Rules as prescribed under subclause (6) of section 73 of the Act. As the relevant date for computation of limitation was 5-4-2004, being a date on which service tax was to be paid for the month of March 2004 and the relevant date for filing the return being 25-4-2004, the notice issued on 6-10-2006 was barred by limitation. The showcause notice had not alleged any suppression on their part with intention to evade payment of service tax. Therefore, demand for the period 2002-03 to 2003-04 issued beyond the period of one year was hit by limitation. They relied on the following case law in r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... signment agent, clearly with intent to evade payment of service tax. The adjudication authority, might have erred in taking the date of the return filed for GTA service in computing limitation but the fact remains that the appellants have not registered, and have not paid service tax though the activity undertaken by them attracts service tax. It is pertinent to mention here that taking recourse to an incorrect provision of law by the lower authority does not vitiate the proceedings initiated against the appellants insofar as their activity as Consignment Agent is concerned. They further contend that penalty cannot be imposed under section 76 for period earlier to 10-9-2004, it can be seen that section 76 is substituted by Finance (No. 2) A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... "In view of our finding as above, we are of the view that since the basis of calculation of the demand has not been given to the appellants, nor the longer period of limitation has been invoked specifically in the show-cause notice, the proceedings flowing from such a defective show-cause notice, are neither legal nor proper. Consequently, we set aside the impugned order on the ground of limitation without going into the question of taxability of maintenance and repair charges prior to 1-7-2003." 6.2 Similarly, in CCE v. Saif Electronics [2009] 19 STT 23 (Ahd. - CESTAT), the Tribunal vacated the demand impugned before it in the absence of grounds for invoking extended period in the show-cause notice issued in June, 2002 for demanding tax ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
