ORDER
S.L. Peeran, Member (J)
1. This Revenue is aggrieved with the Order-in-Appeal No. 7/2006 dated 31.01.2006 by which the Commissioner (Appeals) has set aside the Order-in-Original No. 3/2005-06 dated 28.04.2005 on two grounds
(a) that the Order-in-Original had been passed beyond the terms of show cause notice and issue decided in the Order-in-Original was not a part of allegation raised in the show cause notice.
(b) that the assessee had paid the service tax and have been filing returns regularly and therefore demand raised, otherwise the show cause notice is also barred by time as there was no suppression of facts.
This is challenged by the Revenue.
2. The learned DR took me through the ‘Grounds of Appeal’ and justified the Order-in-Original.
3. The learned Counsel submits that the show cause notice alleged that the service tax has not been discharged and no return has been filed which were not a correct position. He submits that the returns had been filed and service tax had been discharged. He submits that the Order-in-Original dealt with non-inclusion of training material and periodicals in the value of the taxable services which is not the subject matter of the show cause notice. He further submits that even otherwise, the issue pertains to short levy and the show cause notice was issued beyond the statutory limit and therefore the finding on time bar is sustainable.
4. On a careful consideration of the matter, I find that the impugned order passed by the Commissioner (Appeals) is just and proper on both the points. The assessee have discharged the service tax from the year 1999-2000 onwards. The show cause notice proceeded on the basis that the assessee has not discharged the service tax, while in fact they were discharging the service tax. The Assistant Commissioner has proceeded on a different ground i.e. non-inclusion of training material and periodicals in the value of the taxable services which is beyond the terms of the show cause notice. The Commissioner (Appeals) has set aside the demand on time bar as there was non-suppression of facts. There is no merit in the appeal and the same is rejected.
(Pronounced and dictated in the open court)