TMI Blog2016 (8) TMI 949X X X X Extracts X X X X X X X X Extracts X X X X ..... ed to the assessee, so as to invoke the longer period of limitation. Accordingly, the demand raised by invoking the extended period, is not justifiable - penalty not imposed – appeal allowed on point of limitation – rectification of mistake disposed off – decided in favor of appellant. - Service Tax Appeal No. 504 of 2009 - Final Order No. 52898/2016 - Dated:- 2-8-2016 - Ms Archana Wadhwa, Member (Judicial) and Mr. R K Singh, Member (Technical) Shri B L Narasimhan, Advocate for the Appellants Shri Ranjan Khanna, AR for the Respondent ORDER The present Misc application stand filed for rectification of mistake having occurred in Final Order No. ST/53952/2015-CU (DB) dated 29.10.15 vide which the appellants appeal was re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ue of demand being barred by limitation. 4. Learned advocate Shri B L Narasimhan appearing for the appellants has drawn our attention to various decisions of the High Courts laying down that if limitation aspect was raised but was not considered by the Bench, the same amounts to mistake on the part of the Court, requiring rectification. 5. We note that the Hon'ble Gujarat High Court in the case of CCE, Valsad vs. Atul Ltd. [2016 (332) ELT 97, (Guj)] has held that assessees' contention of demand being barred by limitation, left out for consideration in deciding the appeal against him on merits, falls within the scope of rectification. To the same effect is decision of the Tribunal in the case of Atul Products Ltd. vs. CC ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the view that same amounts to a mistake on the part of the Tribunal, in view of various decisions, as discussed above. Accordingly, we allow the ROM application and rectify the said mistake and proceed to decide the issue on limitation. 7. The period involved in the present appeal is from 1.7.2004 to 9.9.2004 and from 16.5.2005 to 31.3.2007 whereas the show cause notice stand issued on 10.7.2008 that is by invoking the longer period of limitation. It is seen that prior to present show cause notice, the applicants were earlier served with a show cause notice dated 24.8.2004, raising demand of duty for the period 2001 - 2003 by classifying the appellants services under the category of 'online information and data base access or ret ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... notice cannot be issued in respect of the same set of allegations, by invoking the longer period of limitation. As such, we are of the view that extended period would not be available to the Revenue for raising the demand. The limitation aspect can be viewed from another angle. Admittedly, during the relevant period, there was disputes going on for the correct classification of appellants activity. As there were contra decisions by the Tribunal, the matter was ultimately placed before the Larger Bench, which ruled against the assessee. In such a scenario, the question as to whether any malafide can be attributed to the assessee or not stand answered by various decisions by the Higher Courts. The Hon'ble Supreme Court in the case of Co ..... X X X X Extracts X X X X X X X X Extracts X X X X
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