TMI Blog2018 (5) TMI 1522X X X X Extracts X X X X X X X X Extracts X X X X ..... t case. Demand barred by limitation - appeal allowed - decided in favor of appellant. - ST/20972/2017-SM - Final Order No. 20400/2018 - Dated:- 15-3-2018 - Shri S.S Garg, Judicial Member Shri H.Y. Raju Adv - For the Appellant Shri Pakshirajan, Asst. Commissioner(AR) - For the Respondent ORDER The present appeal is directed against the impugned order dt. 21/03/2017 passed by the Commissioner (Appeals) whereby the Commissioner(Appeals) has dropped the penalty under Section 78 of the Finance Act, 1994 but upheld the demand of ₹ 5,47,421/- and ₹ 3,07,865/-and ₹ 3,161/- along with interest confirmed in Order-in-Original. Further in respect of service tax demanded on the provision of service to SEZ, he h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the demand confirmed in the impugned order by invoking extended period of limitation is not sustainable in the facts and circumstances of the case. He further submitted that the Commissioner(Appeals) in the impugned order has not given any finding in respect of invocation of extended period of limitation. However while setting aside the penalty imposed under Section 78 of the Act, the learned Commissioner(Appeals) has observed that there is no suppression on the part of the appellant. He further submitted that once it has been admitted that there is no wilful suppression, fraud etc. on the part of the appellant for the purpose of setting aside the penalty imposed under Section 78 of the Act, the same finding will apply for invoking larger ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ice Tax short- paid or not paid can be issued only under the provisions of sub-section (1) of Section 73. The proviso to the said sub-section does not form the basis for demand of Service Tax. The said proviso only has got the effect of fixing the time period of 5 years instead of 18 months for issue of show cause notice, if such short-payment is by any one of the reasons mentioned therein. As such, it is clear that any show cause notice issued by Central Excise officer for demanding Service Tax can be only in terms of Section 73(1). If the ingredients of proviso to the said sub-section is found to be not available in respect of any show cause notice, then apparently the adjudicating authority can restrict the demand for the normal period, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5. On the other hand, the learned AR reiterated the finding of the impugned order and submitted that cancellation of penalty and demand of extended period are different issues which are to be dealt with separately and by misinterpreting the wordings or law, no benefit can be extended to the appellant by holding that the demand is time barred. He relied upon the following decisions in support of his submission:- i. Press Matic Electro Stampings Pvt. Ltd. Vs. CCE, Pune-II [2018-TIOL-584-CESTAT-MUM] ii. CCE, Surat Vs. Electro Mech. Maintenance [2013(30) STR 103 (Tri. Ahmd.)] 6. After considering the submissions of both sides and perusal of material on record, I find that the entire demand in the present case is time barred. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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