TMI Blog2017 (5) TMI 1346X X X X Extracts X X X X X X X X Extracts X X X X ..... said audit report. Appeal dismissed - decided against Revenue. - ST/30792/2016 - A/30637/2017 - Dated:- 4-5-2017 - Mr. M.V. Ravindran, Member(Judicial) Shri Arun Kumar, Dy. Commissioner/AR for the Appellant Shri R. Muralidhar, Advocate for the Respondent ORDER [Order Per: Mr. M.V. Ravindran] 1. This appeal is filed by Revenue against Order-in-Original No.HYD-EXCUS-001-COM-007-16-17, dated 29.04.2016. 2. The relevant facts that arose for consideration are that the respondent herein was receiving services from service provider situated abroad. The respondent was issued a show cause notice dt. 05.01.2011 for payment of service tax by invoking extended period when the demand was for the period 2007-08 to 2009 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ority has not made any reference/mention as to this stipulation in the show cause notice being adjudicated and has totally overlooked the same; once the show cause notice dated 11.04.2012 states that it supersedes the show cause notice dated 05.01.2011, for all practical purposes, show cause notice dated 05.01.2011 ceases to exist. It is also further submitted that the second show cause notice dt. 11.04.2012, irrespective of the fact whether it supersedes the show cause notice dated 05.01.2011 or otherwise, has invoked the extended period of limitation because there is suppression of the fact that the service tax has not been discharged by the respondent on receipt of services from service provider situated abroad. It is his further submiss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s, as has been relied upon by revenue, to raise the demand in the show cause notice dt 05.01.2011. If the first show cause notice dt. 05.01.2011 is issued on the report filed by audit party, the same audit point cannot be relied on for issuing second show cause notice by invoking extended period. In my view, once an audit report was issued and base on that report, show cause notice dt. 05.01.2011 issued invoking extended period, second show cause notice dated 11.04.2012 could not have been issued demanding service tax by invoking extended period on the said audit report. 8. Thirdly, Ld. Commissioner has correctly analysed the entire situation in para 18 of Order-in-original dated 29.04.2016 (supra), which is reproduced: I have gone ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) of the Finance Act, 1994. The department was well aware of the activities of the assessees at the time of the issuance of the first notice itself, which was issued on 05.01.2011 (one year three months prior to the 2nd SCN dated 11.04.2012 was issued) as the issue dealt in both the notices was one and the same and basing on the same contract. The basis for the issue of both the notices was on the activities received/provisioned by the assessees were the same and were within the knowledge of the department at the time of issuance of the first notice itself. As such, I find that department could not have invoked suppression clause for second time on the same assessees for the same activity/ transaction and hence, I find that the demand propo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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