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TMI Blog2025 (3) TMI 1062X X X X Extracts X X X X X X X X Extracts X X X X ..... v) M/s SMR Builders Pvt Ltd. The land for the above project was brought in as capital by the above referred Sl No. (i) to (iii) partners vide MOU entered on 25.10.2007 and partners at Sl No. (iv) and (v) were lead managers for the project. All the above 5 partners had clearly fixed duties and responsibilities. On 30.09.2010, partners at serial no. (i) to (iii) retired and they executed a settlement deed dated 28.10.2010, wherein, it was agreed that 8, 44, 995 sqft of residential built-up area and 7, 200 sqft of commercial built-up area along with proportionate undivided share of land was given to the above 3 partners as settlement of capital. Further, the retiring partners agreed to pay an amount of Rs. 600 per sqft towards construction work to be done post that date on the built-up area allotted to them. The retired partners were paying service tax on sale of flats allotted to them, if sold before OC. Appellant did not pay service tax initially on the above consideration on the bonafide belief that the same would not attract service tax. However, after the introduction of VCES, 2013, appellant filed a declaration dated 31.12.2013 declaring tax dues of Rs. 37, 89, 354/- for the per ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ard they mentioned that they filed the Declaration on 31.12.2013 whereas the Notice was served through Registered Post on 02.01.20215 and a copy of Notice was pasted in the premises of assessee on 31.12.2014. They also quoted the provisions of Section 37C of Central Excise Act, 1944. They also mentioned that as they received the Notice by Regd. Post on 02.01.2015, that date i.e. 02.01.2015 is to be treated as date of receipt. I have gone through the provisions quoted. As per Section 111 of Central Excise Act - no action shall be taken under sub-section (1) after the expiry of one year from the date of Declaration. The wordings in the Section are one year from the Declaration and not 365 or 366 days from the Declaration. Hench, I am of opinion that, in this case the one year expires by 31.12.2014 and not by 30.12.2014. Further, even if we count the limitation in days - as per Section 12 of the Limitation Act, 1963, in computing the period of limitation for any suit, appeal or application, the day from which such period is to be reckoned, shall be excluded. On this count also their argument is defeated. Further, as per Section 37C of Central Excise Act, the date of sending the Notice ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te of declaration. Here, in this case, date of declaration is 31.12.2013 and one year is completed on 30.12.2014. SCN through Registered Post was received on 02.01.2015, which is beyond one year. Even the copy of notice which was pasted in the premises on 31.12.2014, is after completion of one year. Section 111(2) of Finance Act 2013 is very specific that SCN is to be issued within one year from the date of declaration, which is 31.12.2013 and one year will be completed on 30.12.2014 itself. Thus, no action like issuance of SCN under Section 111(1) of Finance Act 2013 can be taken after the expiry of one year from the date of declaration. 8. It has been also argued by Learned Counsel for the appellant that if orders or notices are not validly served as per the mechanism provided under the law, it shall be treated as non-serving in law. Affixing of notice on wall shall not be considered as serving of notice unless it is shown that notice could not be served by post and that there is a direction for the same from the authority issuing notice. The last page of the impugned show cause notice under signature of Adjudicating Authority is clear that it was directed to be served to the ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4 but admittedly the receipt is on 02.01.2015. So, show cause notice was issued only on 31.12.2014 after expiry of one year from the date of declaration as also received after expiry of one year. 10. Learned Counsel for the appellant has relied on Principal Bench's Order in the case of Margra Industries Ltd., Vs Commissioner of Customs, New Delhi [2006 (202) ELT 244 (Tri-LB)] in which Tribunal decided that assumption that delivery of order or summon or decision or notice completed on delivery in post office is not correct. No scope of presumption in taxing matter. In this case, since show cause notice issued after expiry of one year, therefore, no benefit can be given. He further relied on Co-ordinate Bench order in the case of Trans Global Agencies Pvt Ltd., Vs Commissioner of Central Excise, Daman [2009 (245) ELT 757 (Tri-Ahmd)] in respect of mode of delivery of impugned order, wherein, Tribunal held that order served by Department by pasting in factory and drawing panchanama as factory was closed, was not correct. In this case, affixing copy in factory, was possible only if order could not be served through registered post with acknowledgment due. Whereas, in the present case, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eparate ground or provision which has been relied by the Department to invoke extended period etc., in terms of Section 73 and therefore, the maintainability of the show cause notice has to be examined within the provisions contained under Section 111 of the Finance Act itself. As can be seen that the provision is very clear that where the Commissioner of Central Excise has reasons to believe that the declaration made by the declarant under the Scheme was "substantially false", he may serve notice in respect of such declaration requiring him to show cause why he should not pay the amount not paid or short paid. However, there is a caveat in the said provision that no action shall be taken under Section 111 of the Finance Act 2013 after the expiry of one year from the date of declaration. In this case, the date of declaration is clearly and admittedly 31.12.2013 when the appellant had filed their Declaration bearing no. 1500/2013 dated 31.12.2013 for an amount of Rs. 37, 59, 354/-. Therefore, the next question is when was the notice served on the declaration in respect of such declaration. In this case, as per the factual and admitted position, the notice was served only on 02.01.20 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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