TMI Blog2009 (8) TMI 961X X X X Extracts X X X X X X X X Extracts X X X X ..... heir farms to the factory gate of the appellant; that the appellant was issued with SCN-cum-demand notice dated 6-5-2002 directing the appellant to show cause as to why the Service tax of Rs. 3,76,347/- along with interest under Section 75 of the Finance Act, 1994 (hereinafter referred as the Act) and penalty under Section 78 of the Act should not be demanded and recovered; that the said SCN-cum-Demand Notice was adjudicated with confirmation of Service tax under Section 73 of the Act along with interest under Section 75 vide order dated 27-2-2002; that subsequently, the appellant filed an appeal No. 37/2003 along with stay application before the Commissioner (Appeals); that pending decision of the appeal, the appellant was issued with anot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oner (Appeals), the appeal filed before the CESTAT was allowed and hence, the second SCN dated 8-11-2004 is not sustainable and the appellant relies on the decision of the Tribunal in the case of CCE v. Sidharth Tubes Ltd. - 2004 (170) E.L.T. 331 and Commissioner (Appeals) s Order No. 60/2007 dated 30-4-2007; (iii) that the subsequent SCN-cum-Demand Notice is also clearly time barred as the extended period of limitation is not available to the department and the appellant relies on the decision of the Tribunal in the case of CCE v. Ghatprabha SSK Ltd., 2007 (8) S.T.R. 545 (Tri. Bang); (iv) that the Assistant Commissioner has not offered any findings about the applicability of the ratio laid down in the case of Hiranykeshi SSK Ltd. - 200 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the appellant by following the decision of the Apex Court in the case of CCE, Meerut-II v. M/s. L. H. Sugar Factories Ltd. - 2006 (3) S.T.R. 715 (S.C.) = 2005 (187) E.L.T. 5 (S.C.); that being the facts of the case, the appellant was again issued with another SCN dated 8-11-2004 covering the same amount and the same period which has been adjudicated by the Assistant Commissioner vide his order dated 21-1-2009 against which the present appeal has been filed by the appellant. From the above facts, it is clear that the Assistant Commissioner has committed so many errors. First of all, he has not followed the ratio laid down by the CESTAT vide its order dated 20-9-2005 which has been issued following the ratio of the Apex Court in the case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not sustainable, in as much as, the same issue was decided by the CESTAT vide its order dated 20-9-2005 setting aside the Commissioner (Appeals) order dated 31-3-2005 which had upheld the decision of the lower authority passed vide his O-I-O No. KOP-II/ADJ/STC/2002, dated NIL. Even otherwise, as claimed by the appellant, the second SCN covering the same issue and same period is also not maintainable as held by the Tribunal, Delhi in the case of CCE, Indore v. Sidharth Tubes Ltd. Further the second SCN is time barred as held by the Hon ble Tribunal Bangalore in the case of CCE, Belgaum v. Ghataprabha Sahakari Sakkare Karkhane Niyamit - 2007 (8) S.T.R. 545 (Tri. - Bang.) supra. In short, on all grounds, the impugned order is no sustainable. ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
