TMI Blog2018 (12) TMI 1296X X X X Extracts X X X X X X X X Extracts X X X X ..... April 2001 to March 2006 and the impugned order also appropriated an amount of ₹ 66,06,843/- being service tax voluntarily paid for the normal period of limitation i.e. April 2005 to March 2006. Further, there are errors in quantification of the service tax as alleged by the appellant. The demand of service tax for the normal period confirmed and the demand for the extended period of limitation set aside - case remanded back to the original authority to quantify the demand for the normal period and the appellant would also be liable to pay interest as per law, if there is a delay in the payment of tax found by the adjudicating authority - appeal allowed in part by way of remand. - ST/369/2008, 370/2008, 371/2008, 701/2008-DB - Final Order No. 21801-21804/2018 - Dated:- 27-11-2018 - MR. S.S GARG, JUDICIAL MEMBER And MR. P. ANJANI KUMAR, TECHNICAL MEMBER Shri G. H. Pradyumna, Advocate For the Appellant Shri Pakshirajan, Asst. Commissioner (AR) For the Respondent ORDER Per: S.S GARG Appellants have filed these four appeals against the impugned orders dt. 19/02/2008 and dt. 06/10/2008 whereby the Commissioner has confirmed the demand amounting ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appears to be based on the turnover reported in the books of account for the period 2001-02 to 2005-06. It is further stated by the appellant that the Department has issued another show-cause notice dt.09/08/2004 demanding service tax of ₹ 40,90,811/- for the period 1998-99 to 2003-04 by invoking extended period of limitation and that the first show-cause notice had been issued on the basis of their balance sheet for the period 1998-99 to 2002-03 as well as the bills raised by them during 2003-04 They have also stated that the demand of additional tax invoking extended period of limitation covering the same period is not sustainable since all the relevant facts were within the knowledge of the Department at the time of issuance of the first show-cause notice dt 09/08/2004. Further the appellant also submitted all the requisite documents to the Department. After following due process, the Commissioner of Central Excise, Bangalore vide Order-in-Original dt. 19/02/2008 confirmed the demand and held that the plea of time bar put forth by the appellant was not sustainable since fresh evidence had been unearthed by the DGCEI which had been hitherto suppressed by the appellants at t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pellant filed appeal before the CESTAT, Bangalore. The CESTAT vide Final Order No. 188/07 dt. 14/02/2007 held that the appellant had paid service tax of ₹ 37 lakhs even before issuance of show-cause notice and had paid penalty of ₹ 10,000/- for the delay in payment of service tax of ₹ 3 lakhs. Further it was also observed by the Tribunal that the matter as to the levy of service tax on security services was pending before the High Court of Madras and a stay had been issued by the High Court and hence the plea of bona fide belief put forth by the appellants was to be accepted. Consequently, the CESTAT set aside the order of the Commissioner imposing penalties and the said order of the CES TAT was not appealed against by the Department. He further submitted that in the earlier proceedings, the Department proceeded against the appellant on the basis of the documents supplied by the appellant vide their letter dt. 17/12/2004 and after examining all the entire records, the Department issued the show-cause noticed for the period November 1998 to March 2004. He further submitted that the plea of time bar raised by the appellant before the Commissioner was dismissed on th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... demand if a show-cause notice was already issued based on the same investigation though it was for seizure of goods. Further he also relied upon the following decisions wherein it has been held consistently that extended period is not invokable when full facts were known during earlier proceedings. i. Khatao Makanji SPG WVG Co. Vs. CCE [1999(108) ELT 378 (Tri.)] ii. Dolphine Detective Agency Vs. CCE, Belgaum [2006(4) STR 25 (Tri. Bang.)] iii. Northern India Tiles Corporation Vs. CCE [2012(281) ELT 444 (Tri. Del.)] iv. MAA Communications Bozell Ltd. Vs. CST, Bangalore [2017(3) GSTL 89 (Tri. Bang.)] v. TAT Iron Steel Co. Ltd. Vs. CCE, Jamshedpur [2016(344) ELT 994 (Tri. Kol.)] vi. Mahalaxmi Fabrics Mills Pvt. Ltd. Vs. CCE ST, Ahmedabad [2016(339) ELT 427 (Tri. Ahmd.)] vii. DSM Anti-infectives India Ltd. Vs. CCE ST, Chandigarh [2017(4) GSTL 280 (Tri. Chan.)] viii. CCE C, Nashik Vs. Mahindra Mahindra [2018(11) GSTL 126 (Bom.)] ix. Gujarat Ambuja Exports Ltd. Vs. UOI [2012(26) STR 165 (Guj.)] 3.3. He also submitted that the CBEC vide its Circular No. 1063/2/2018-CX dt. 16/02/2018 has taken a decision that in view of the Supreme Court's decision in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rvice tax of ₹ 40,90,811/- for the period 1998-99 to 2003-04 and after considering all the documents produced by the appellant, the original authority confirmed the demand of ₹ 40,90,811/- and dropped the penalty and thereafter a review show-cause notice was issued and the Commissioner vide Order-in-Review dt. 11/08/2006 imposed penalties under Sections 76, 78. The said order of the Commissioner was challenged before the CESTAT and the CESTAT vide Final Order dt. 14/02/2007 allowed the appeal of the assessee and held that there was no suppression on the part of the appellant. We also find that the said order has not been challenged and becomes final. We also find that on the same facts, present show-cause notice was issued covering the period April 2001 to March 2006. Further we find that issuance of subsequent show-cause notices on the basis of some facts for which earlier show-cause notice was issued and which was finally decided by the Tribunal dropping the penalty on the appellant cannot be done in view of the decision of Hon'ble Supreme Court in the case of Nizam Sugar Factory cited supra. This decision of the Hon'ble Supreme Court was consistently followed ..... X X X X Extracts X X X X X X X X Extracts X X X X
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