ORDER
P.G. Chacko, Member (J)
1. The Commissioner has demanded service tax of over Rs. 1.9 crores from the appellants for the period February, 2005 to March, 2006. He has also imposed penalties on them. The impugned order is in adjudication of a show-cause notice dated 20.10.2006, which invoked the extended period of limitation Under Section 73(a) of the Finance Act, 1994. After examining the records and hearing both sides, we note that, for an earlier period (August, 2002 to January, 2005), a similar matter had arisen before this Bench and we had directed the assessee to predeposit Rs. 25 lakhs out of Rs. 3.91 crores vide Stay Order No. 104/07 dated 06.02.07 in Appeal No. S/214/2006. We are told that the assessee deposited the above amount in the earlier case. Learned Counsel has, however, made an endeavour to differentiate the present case from the earlier one by submitting that the finding of suppression of facts, recorded in the impugned order, against the assessee cannot be sustained inasmuch as all material facts were within the knowledge of the department insofar as the period of present dispute is concerned. It is submitted that the show-cause notices issued in both the cases are based on the same agreement entered into between the appellants and the foreign company, the service-provider. It is submitted that the agreement was produced by the appellants to the investigators of the department for the earlier case and that, for the later period, it cannot be said that anything was suppressed by them. On this basis, the invocation of extended period in the present case is under challenge. Learned Counsel has prayed for taking this aspect into account in the event of the earlier stay order being followed.
2. We have heard learned SDR also, who submits that, despite the successive proceedings initiated against the assessee for demanding service tax on the service received by them from abroad, they have not chosen even to get registered with the department. This submission, of course, is on the premise that the appellants are liable to pay service tax in terms of the impugned order.
3. We have already held against the assessee in Stay Order dated 06.02.2007 for the earlier period. The facts of the present case are undisputedly similar to those of the earlier one. The basis of the demand on the assessee for the two periods is the same agreement between them and the foreign company. However, in the present case, learned Counsel has been able to make a valid point on the issue of time-bar. He has relied on International Clearing and Shipping Agency v. Commissioner of Central Excise, Chennai – a stay order passed by one of us sitting single and a few decisions of the apex court including ECE Industries Ltd. v. Commissioner of Central Excise, New Delhi , in support of the submission that the finding of suppression of facts against the assessee for the period of dispute in this case cannot be sustained in view of the information gathered from them by the department for the previous period. The basis of the finding of suppression is the same agreement entered into between the appellants and the foreign company. We have found a valid point in the submissions of learned Counsel in the context of the appellant’s challenge against the demand on the ground of time-bar.
4. Accordingly, we direct the appellants to predeposit Rs. 5 lakhs (Rupees Five lakhs only) within a period of 4 weeks and report compliance on 29.10.2007.
(Dictated and pronounced in open court)