TMI Blog2017 (5) TMI 1082X X X X Extracts X X X X X X X X Extracts X X X X ..... ) of Section 73 of the FA, 1994 is barred by limitation of time. Issuance of second SCN on 23.10.2009 is clearly barred by limitation of time, having been issued beyond the period of one year from the relevant date. Appeal allowed - decided partly in favor of appellant. - Service Tax Appeal No. ST/510/2012-ST [DB] - Final Order No. 56481 /2016 - Dated:- 23-12-2016 - Mr. S.K. Mohanty, Member (Judicial) Mr. B. Ravichandran, Member (Technical) Mr. Tarun Gulati, Sparsh Bhargava and Ms. Rachna Yadav, (Advocates) for the Appellant Mr. Ranjan Khanna, D.R for the Respondent ORDER PER:S.K. MOHANTY Brief facts of the case are that the appellant is a Non-Banking Finance Company and is engaged, inter alia, in the busi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ,030/- as wrongly utilized cenvat credit. Both the SCNs were issued on the ground that the appellant did not pay service tax on the commission received under the head subvention account for providing the services to its customers. The ld. Adjudicating Authority vide the impugned order dated 19.01.2012 has dropped the proceedings initiated in the SCN dated 16.01.2008. However, he has confirmed the service tax demand of ₹ 94,15,969/- alongwith interest and imposed penalties under Section 77 78 of the Finance Act, 1994 as per the proposals made in the SCN dated 23.10.2009 issued by the DGCEI. Besides, the impugned order has also confirmed demand of service tax credit of ₹ 65,030/- wrongly utilised by the appellant. Feeling aggrie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4. On the other hand, the ld. DR appearing for the respondent reiterated the findings recorded in the impugned order. 5. Heard both sides and perused the records. 6. On perusal of the case records, we find that the receipt of subvention amount was duly reflected by the appellant in the ST-3 Returns filed during the disputed period. In the notes appended to the said Returns, the appellant had explained the facts regarding payment of service tax on subvention/ manufacturer discount and also non-payment of service tax on such amount in some of the cases. The notes appended to the return for the period April 2007 to September 2007 are extracted herein below:- 1. Subvention/manufacturer discount is in the nature of interest and is no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Department had issued two Show cause notices, on 16.01.2008 23.10.2009, seeking confirmation of service tax demand for the period October, 2004 to September, 2007 and September, 2004 to March, 2007 respectively. While issuing the first show cause notice on 16.01.2008, the material facts were known to the Department. Issuance of second show cause notice on 23.10.2009 is clearly barred by limitation of time, having been issued beyond the period of one year from the relevant date. In this context, the Hon ble Supreme Court in the case of Nizam Sugar Factory (supra) held that while issuing 2nd and 3rd show cause notices based on same / similar facts, the allegation of suppression of fact on the part of the assessee cannot be invoked as the ma ..... X X X X Extracts X X X X X X X X Extracts X X X X
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