TMI Blog2017 (3) TMI 788X X X X Extracts X X X X X X X X Extracts X X X X ..... ved for such activity which is liable to service tax - matter on remand. Time limitation - demand held as time barred only on the ground that the SCN was issued after 1½ years of audit - Held that: - the relevant date u/s 73 (1) of the FA, 1994 is with reference to the date of filing return etc. The normal period or extended period is determined based on the provisions contained therein. If the ingredients for invoking demand for extended period are available, then such demand can be raised for 5 year period. The date of knowledge of the Department is not relevant in such situation - time limitation not invocable - this matter also needs reconsideration. Appeal allowed by way of remand. - Service Tax Appeal No. 1261 of 2011 with C.O. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he grounds of appeal and submitted that the reason given by the learned Commissioner on time bar is legally not sustainable. He recorded that the audit of the accounts of respondent/assessee was conducted in August 2007 and the show cause notice was issued invoking extended period after 1 years of the audit. Hence he held the demand is hit by time bar. He relied on decision of Tribunal in Bellary Iron Ores Pvt. Ltd. vs. CCE, Belgaum reported in 2010 (18) S.T.R. 406 (Tri. Bang.) to state that extended period demand cannot be issued based on audit objection. He also relied on decision of Tribunal in Aditya College of Competitive Exam. Vs. CCE, Visakhapatnam reported in 2009 (16) S.T.R. 154 (Tri. Bang.). It is the submis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pecific service. 4. We have heard both the sides and perused the appeal records. On the appeal filed by the Revenue, we note that the Commissioner (Appeals) has erred in recording the reason for time bar. He held the demand as time barred only on the ground that the show cause notice was issued after 1 years of audit. We find no legal basis for such conclusion. The relevant date under Section 73 (1) of the Finance Act, 1994 is with reference to the date of filing return etc. The normal period or extended period is determined based on the provisions contained therein. If the ingredients for invoking demand for extended period are available, then such demand can be raised for 5 year period. The date of knowledge of the Department is not r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stands admitted. It would differ from a case where fraud, etc. are merely alleged and are disputed by an assessee. Hence, by no stretch of imagination the concept of knowledge can be read into the provisions because that would tantamount to rendering the defined term relevant date nugatory and such an interpretation is not permissible . The said ratio has been followed in various decisions of the Tribunal. In L Oreal India Pvt. Ltd. vs. CCE, Pune I reported in 2015 (330) E.L.T. 253 (Tri. Mumbai) it is held :- 5.11 Reliance is placed on the decision of the Hon ble Gujarat High Court in the case of Neminath Fabrics Pvt. Ltd. [2011-TIOL-10-HC-AHM-CX = 2010 (256) E.L.T. 369 (Guj.)] and the Larger Bench decision in Unio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rding the merits of the demand, we note that the impugned order did not give categorical finding after examining the documents and evidence submitted by the respondent/ assessee. It is necessary to give a clear finding regarding the nature of activity undertaken by the respondent/assessee, the consideration received for such activity which is liable to service tax. The Revenue contended that the respondent/assessee is engaged in managing and maintaining a immovable property and consideration is received by way of parking fee. The respondent/ assessee contends that they are only rendering service of allowing parking and collecting parking fee for such service. The management maintenance of common area is already subjected to tax. It is argue ..... X X X X Extracts X X X X X X X X Extracts X X X X
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