TMI Blog2011 (3) TMI 189X X X X Extracts X X X X X X X X Extracts X X X X ..... rding Agent for the period from 16-7-1997 to 16-10-1998. The Superintendent of Central Excise in charge of the appellant s factory, vide his letter dated 4-11-2003, directed the appellant to pay Service Tax on the services received during the relevant period. The appellants challenged the same in a Writ Petition before the Hon ble Andhra Pradesh High Court and the Hon ble High Court, vide its interim order, suspended the directions contained in the said letter. Finally, the Writ Petition was dismissed on 27-1-2005 by the Hon ble High Court. A show-cause notice dated 19-10-2005 was issued to the appellant demanding Service Tax of an amount of Rs 25,85,073 and also directing the appellant to show cause as to why the penalty be not imposed on them under various sections of the Finance Act, 1994 and also for demand of the interest. The appellants resisted the show-cause notice before the adjudicating authority. The adjudicating authority did not agree with the contentions raised by the appellant and confirmed the demand and imposed penalties and also demanded interest. Aggrieved by such an order, the appellant preferred an appeal before the learned Commissioner (Appeals). The learned C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in force and hence that period should be excluded from calculating the limitation period. It is his submission that the show-cause notice dated 19-10-2005 is within the time if we exclude the period during which the Hon ble High Court s stay order was in force. 5. The learned Counsel in rejoinder, would draw our attention to the interim order of the High Court and submitted that the Hon ble High Court had suspended the actions sought to be initiated by the Superintendent of Central Excise vide his letter dated 4-11-2003. It is his submission that the letter dated 4-11-2003 of the Superintendent of Central Excise was addressed to various parties which directed the appellant to pay the Service Tax liability and never sought the details from the appellant. 6. We have carefully considered the submissions made at length by both sides and perused the records. 7. As has been fairly admitted by the learned counsel that the issue in this case i.e., regarding the Service Tax liability on the Goods Transport services and Clearing Forwarding Agency services during the relevant period on merits, is, against the appellant assessee. 8. The only question to be addressed in this case is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs of Service Tax on the said services immediately. As against this direction of the Superintendent to make the payment of the Service Tax, in the appellant s Writ Petition the Hon ble High Court passed the following interim order:- Wire at Party s Costs 1. The Secretary, Union of India, Ministry of Finance, North Block, New Delhi. 2. The Commissioner of Customs and Central Excise, Tirupathi, Chittoor District. 3. The Deputy Commissioner of Central Excise, Kurnool Division, Kurnool. 4. Superintendent of Central Excise, Range-II, Kurnool, Kurnool District. By order of High Court dated 12-3-2004 in W.P.M.P. No.5952 of 2004 in W.P. No.4553 of 2004 filed by the petitioner viz., Sree Rayalaseema Alkalies and Allied Chemicals Ltd., Rep. by its Vice President, Customs and Excise Sri M.V. Laksmi Reddy - The notice of the 4th addressee vide OC No. 918/2003, dated 4-11-2003 whereby the petitioner directed to furnish all returns and also to pay the Service Tax on the said services be and hereby is suspended - order follows High Court W.P.M.P.NO. 5952 OF 2004 IN W.P.NO. 4553 OF 2004. 13. It can be seen from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of which an earlier show-cause notice dated 29-1-1976 had already been issued. 4. It is not disputed by the Revenue that the appropriate period of limitation to apply to the facts of the case is six months as provided in section 11A of the Act and that the Notice issued on 20th of May, 1982 was beyond that period. Reliance was placed on the Explanation for obtaining extension of that period. The Explanation reads thus: "Where the service of the notice is stayed by an order of a Court, the period of such stay shall be excluded in computing the aforesaid period of six months or five years, as the case may be." 5. The provision in the Explanation incorporates a well-known principle of law. Section 15 of the Limitation Act of 1908 (also of section 15 of the Limitation Act of 1963) incorporates the same principle. This Court in Sirajul Haq Khan v. The Sunni Central Board of Waqf, UP (1959) SCR 1287, dealt with the effect of an order of injunction in the matter of computation of limitation. At page 1302 of the Reports, Gajendragadkar, J. as he then was, spoke for the Court thus : "It is plain that, for excluding the time under this section, it must be shown that the institution ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that clearly shows that the expression levy has not been used in the Act or the Rules as meaning actual collection 8. The High Court having direct stay of collection had, therefore, not given any interim direction in the matter of issue of notice or levy of the duty. The Explanation in clear terms refers to stay of service of notice. The order of the High Court did not at all refer to service of notice. Therefore, there is force in the submission of the appellant that the benefit of the Explanation is not available in the facts of the case. 9. No notice seems to have been issued in this case in regard to the period in question. Instead thereof an outright demand had been served. The provisions of section 11A(1) and (2) make it clear that the statutory scheme is that in the situations covered by the sub-section (1), a notice of show cause has to be issued and sub-section (2) requires that the cause shown by way of representation has to be considered by the prescribed authority and then only the amount has to be determined. The Scheme is in consonance with the rules of natural justice. An opportunity to be heard is intended to be afforded to the person who is likely to be prej ..... X X X X Extracts X X X X X X X X Extracts X X X X
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