TMI Blog2009 (9) TMI 51X X X X Extracts X X X X X X X X Extracts X X X X ..... cond agreement for the White Cement Division - that five year period has been correctly invoked and applied against the assessees as the case falls within the provision of Section 731(1)(a) of the Finance Act, 1994 - the demand is not barred by limitation – penalty set aside on the ground that assessees are not physically handling the goods and that they are paid commission on the basis of the qua ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6.1.2004 passed by the Deputy Commissioner who also imposed penalty. The Commissioner (Appeals) vide order dated 3.8.2004 allowed the assessee's appeal following the decision of the Tribunal in the case of Mahavir Generics Vs. CCE, Bangalore - 2004 (95) ECC 54; the Tribunal set aside the order of the Commissioner (Appeals), following the decision in Prabhat Zarda Factory (India) Ltd. Vs. CCE ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has been short-paid or any sum has erroneously been refunded, he may at any time within five years from the relevant date, serve a notice. The lower appellate authority has held that the assessees did not disclose the material facts relating to the second agreement for the White Cement Division, receipt of service charges to the Department and did not pay appropriate service tax on service char ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plied against the assessees as the case falls within the provision of Section 731(1)(a) of the Finance Act, 1994. I, therefore, hold that the demand is not barred by limitation. 3. However, as regards penalty, I accept the contention of the assessees that it requires to be set aside for the reason that the assessees are not physically handling the goods and that they are paid commission on th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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