TMI Blog2023 (12) TMI 45X X X X Extracts X X X X X X X X Extracts X X X X ..... Appellant before the Notary Public, the Affidavit is accepted and 17.01.23 is treated as the date of receipt of OIO. Since, the Appellant has filed the appeal within the time limit prescribed from 17.01 2023, it is held that the Appellant has filed the appeal within the time limit prescribed under Section 37C and direct the Commissioner (Appeals) to decide the issue on merits. For that purpose, the impugned order is set aside and matter remanded to the Commissioner (Appeals), to hear the Appellant and decide the issue on merits. Appeal allowed by way of remand. - HON BLE MR. K. ANPAZHAKAN MEMBER ( TECHNICAL ) Shri Akshat Agarwal Shri Anand Pasari , both Advocates for the Appellant Shri P. K. Ghosh , Authorized Represen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mitation is not sustainable. In this regard, the Appellant relied on the decision of the Hon ble Supreme Court in the case of Aban Lyod Chiles Offshore Ltd. vs. CCE reported in 2006 (200) ELT 370 (SC) wherein it has been held that when all the facts were already within the knowledge of the Department, invoking extended period of limitation to demand duty is not justified. 3. The Appellant submits that the demand of Service Tax cannot be made solely on the basis of difference between Income tax return and 26AS Statement. In the present case, the Service Tax Department has demanded service tax solely on the basis of the data provided by the Income Tax Department, which is the gross value as received by the Appellant and it is no longer res ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ention. Accordingly, they prayed for setting aside the demands confirmed in the impugned order. 5. Regarding rejection of the appeal by the Commissioner (Appeals) on the ground of limitation, they stated that they have not received the SCN or Order-in-Original. They came to know about the confirmation of the demand and issue of the Order-in-Original dated 31.01.2022 only after receiving the phone call from Superintendent Mr. Sanjeev Shah. After that they approached the department and received a copy of the Order-in-Original on 17.01 2023. They have filed the appeal before the Commissioner (Appeals) within the time stipulated in Section 37C from the date of receipt of the OIO, ie, from 17.01.2023. They have filed an Affidavit dated 16.01. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dated 31.01.2022 only after receiving the phone call from Superintendent Mr. Sanjeev Shah. After that they approached the department and received a copy of the Order-in-Original on 17.01 2023. They have filed the appeal before the Commissioner (Appeals) within the time stipulated in Section 37C from the date of receipt of the OIO, ie, from 17.01.2023. They have filed an Affidavit dated 16.01.2023 signed before the Notary Public and submitted the same before Commissioner (Appeals ) to treat the date 17.01.2023 as the date of receipt of the OIO and hear their appeal on merits. However, the Commissioner (Appeals) has not considered their request and rejected the appeal on the ground of limitation and not discussed issue on merits. Accordingly, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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