ORDER
S.L. Peeran, Member (J)
1. This appeal arises from the OIO No. 2/2006 dated 23-1-2006 confirming Service Tax in terms of Show Cause Notice dated 8-7-2005 for services rendered for the period 1998-99 to 2003-04 (upto December 2003) under the provisions of Section 73(1) of the Finance Act, 1994 read with extended time limit under proviso to Section 73(1) of the Finance Act, 1944. The appellants were supplying the services of drivers, labourers, computer operators, wardliers, typists, stenographers, etc. to their clients on temporary basis and such activity was brought within the service tax net from 16-6-2005. The legal position pertaining to the category being brought under the service tax from 16-6-2005 is not denied by the Commissioner. However, he has shifted the burden on the appellants to produce “cogent and corroborative evidence”. The appellants had pointed out to the Commissioner that the Show Cause Notice did not bring out the ingredients of larger period. But, the Commissioner confirmed the demands for the period beyond one year. There is no allegation made for invoking larger period and, therefore, the appellants contended that the demands are barred by time.
2. The learned Counsel submits that if the ingredients of the larger period are not brought out in the Show Cause Notice, then demands are not to be confirmed as held by the Apex Court in the case of T.N. Dadha Pharmaceuticals v. CCE, Madras 2003 (152) E.L.T. 251 (S.C.). He also relies on the following rulings.
(i) Nizam Sugar Factory v. CCE, A.P. 2006 (197) E.L.T. 465 (S.C.)
(ii) CCE v. H.M.M. Limited
(iii) Kaur & Singh v. CCE, New Delhi 1997 (94) E.L.T. 289 (S.C.)
(iv) Cosmic Dye Chemical v. CCE, Bombay
He submits that for these two reasons, the bench has been pleased to grant waiver of pre-deposit by Stay Order No. 715/2006 dated 13-7-2006 and he prays for setting aside the impugned order on these two grounds.
3. The learned JDR reiterated the departmental view and the reasons given by the Commissioner.
4. We have carefully considered the grounds made out by the appellants in the matter. We have perused the Show Cause Notice. The Show Cause Notice is bereft of any reasons to invoke the larger period. The Revenue has to bring out the proviso to larger period like suppression of facts, wilful mis-statement with an intend to evade the service tax. Such facts have not been brought out in the Show Cause Notice at all. Therefore, in terms of the above noted Supreme Court judgments, the demands for larger period cannot be confirmed. Furthermore, the Commissioner clearly admits that the type of services rendered by the appellants have come within the ambit of Service Tax from 16-6-2005 yet he proceeds to confirm the demands on the ground that the assessee did not produce any ‘cogent and corroborative evidence’. It is surprising as to how the Revenue can shift the burden on the assessee when the burden is on the Revenue to show that the Service tax is leviable on the said category. The findings recorded by the Commissioner by shifting the burden on the assessee is not as per law. Furthermore, the Counsel has pointed out from the records that they have produced evidence. In such a circumstance, the conclusion drawn that evidence was not produced is also not a correct finding The impugned order is not as per law. The same is set aside by allowing the appeal with consequential relief, if any.
(Pronounced and dictated in open Court)