TMI Blog2015 (9) TMI 835X X X X Extracts X X X X X X X X Extracts X X X X ..... ails have to be gone into by the Commissioner and not by this court. If it is found by him that the facts, data and factors, which were the basis of the earlier show cause notices were relevant in issuing the impugned show cause notice, then the show cause notice would be clearly hit by the judgment of the Hon’ble Supreme Court [2006 (4) TMI 127 - SUPREME COURT OF INDIA]. In other words, the show cause notice would be barred by the laws of Limitation, because the department had knowledge of the ingredients of the impugned show cause notice. The petitioner could not be charged with suppression to invoke the longer period of limitation. - show cause notice dated 6th January, 2014 is set aside with an option to the Commissioner to scrutini ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... writ petition the court would be able to form an opinion that the show cause notice was hopelessly barred by limitation, without jurisdiction and nonest. The grounds urged by Mr. Mittal are shortly these. Earlier, three show cause notices had been issued by the department. They were issued on 2nd August, 2007, 25th June, 2008 and 17th September, 2009. The case of the department in these show cause notices, to put it very briefly, was that the writ petitioner was acting as a works contractor providing services to service recipients. These service recipients had been providing certain materials free of cost to the writ petitioner. They allegedly did not add the value of these materials and had paid service tax accordingly. For the self ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... within time. The writ petitioner could not be charged with suppression. He cited 2006[197] ELT 465 [SC] [Nizam Sugar Factory vs. Collector of Central Excise, A.P.] where the Hon ble Supreme Court held the following in paragraph 9 : Allegation of suppression of facts against the appellant cannot be sustained. When the first SCN was issued all the relevant facts were in the knowledge of the authorities. Later on, while issuing the second and third show cause notices the same/similar facts could not be taken as suppression of facts on the part of the assessee as these facts were already in the knowledge of the authorities. We agree with the view taken in the aforesaid judgments and respectfully following the same, hold that there was no s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it is difficult to think that the subject matter of the three earlier show cause notices and the impugned show cause notice are totally different. Both relate to service tax. One tax appears to be payable at a later stage than the other. There can be no argument that the issue whether the writ petitioner as a works contractor availed of free materials from the service recipients and failed to include them in their assessment of service tax, is a relevant factor in the computation of service tax on Commercial or Industrial construction services and to determine the issue whether they have improperly availed of abatement of ₹ 268,78,48,460/- under the subject notification. If one applies the ratio of the Supreme Court case, it is for ..... X X X X Extracts X X X X X X X X Extracts X X X X
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