TMI Blog2012 (8) TMI 535X X X X Extracts X X X X X X X X Extracts X X X X ..... a fit case to invoke the extended period alleging suppression - Appeal fails on account of time bar and also on merits. - ST/262/2006 - ST/256-257/2011(PB) - Dated:- 28-6-2011 - S/Shri Ashok Jindal, Mathew John, JJ. REPRESENTED BY : Shri Sumit Kumar, DR, for the Department. Shri Vikas, Advocate, for the Assessee. [Order per : Mathew John, Member (T)]. In this proceeding two appeals and one cross objection are being decided. One is Appeal No. 262/2006 filed by the Department against Order-in-Appeal No. 267 (HKS) CE JPR-II/2006 dated 10-4-2006 issued by Commissioner (Appeal), Jaipur-II. Against this Appeal M/s. Ajmer Automobiles have filed cross-objection. The second Appeal is ST/46/2008-SM filed by M/s. Ajmer Automobil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 100/- per day under Section 76 ibid for not depositing the service tax due, which shall continue till the amount is deposited by the assessee but which shall not exceed Rs. 2,43,406/- (Rupees two lakh forty three thousand four hundred and six only). (iv) I impose a penalty of Rs. 2,43,406/- (Rupees two lakh forty three thousand four hundred and six only) under Section 78 ibid on the assessee. (vi) I also impose a penalty of Rs. 1000/- on the assessee under Section 77 ibid for contravening provisions of Section 70 read with Rule 7 of the Service Tax Rules, 1944. 3. Against this order the party went in Appeal. The Commissioner (Appeal) by his order dated 31-3-2006 set aside the order of the Joint Commissioner. The operative part of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e meanwhile Commissioner issued a SCN dated 30-7-2007 for review of the Order dated 25-11-2005 of the Joint Commissioner. This SCN was decided by order dated 23-10-2007. The operative part of the order is as below : (1) I confirm the demand of Rs. 1,66,885/- from the assessee on the amount received by the from Maruti Finance Ltd. under Section 73(1) of the Chapter V of the Finance Act, 1994 read with Section 67 of the Act and hold that the same is recoverable with interest as applicable under Section 75 ibid. (2) I impose a penalty of Rs. 1,66,885/- under Section 78 ibid on the assessee. 6. Aggrieved by this order M/s. Ajmer Automobiles have filed Appeal No. ST. 46/2008-SM. 7. When the SCN dated 30-7-2007 was issued the order-in-o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vision 73(1) in force on the date of issue of the SCN, it is necessary to prove suppression of information to invoke extended period of time. No suppression of information is involved because the entire record was produced to the audit party and replies to queries raised by the Audit party were given promptly. 12. We also take note of the argument raised in Appeal Memo that the commission received by the Appellant was out of the commission received by Maruti Udyog Ltd. from the Finance companies on which Maruti Udyog Ltd. had paid Service Tax. It is decided by the Tribunal in Popular Vehicles and Services Ltd. v. C.C.E. Kochi - 2010 (18) S.T.R. 493 that in such situation tax is not payable again on the same amount. It is to be kept in min ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat mere mention of wrong section number in the Show Cause Notice cannot invalidate the Show Cause Notice so long as the acts constituting the offence is explained and the acts constituted an offence within the meaning of the correct section that was in force at the time of issue of Show Cause Notice. In the case, Section 73(1)(a) of the Finance Act which was in force at the time when the short levy occurred was quoted. The section is force at the time of issue of notice should have been quoted. But this wrong mention of the section is not fatal to the Show Cause Notice so long as the ingredients of the new provision under Section 73(1) are satisfied. 18. The new section requires that Notice can be issued invoking the extended period only ..... X X X X Extracts X X X X X X X X Extracts X X X X
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