ORDER
M. Veeraiyan, Member (T)
1. This is an appeal by the Department against the order of the Commissioner (Appeals) No. Commr(A)/04/VDR-II/2007, dt.22.1.07.
2. Heard both sides.
3. The dispute relates to the recovery of the Service Tax for the period 16.7.97 to 15.10.98, for which a show cause notice was issued on 28.9.05. The respondent, a service receiver, is deemed to be a service provider by a retrospective amendments effected in the year 2000 and in the year 2003 and they are required to file return within 6 months from 13.11.2003, in respect of the services received by them during the earlier period as well. Section 73 which was a Section relating to the recovery of the short levied tax was amended w.e.f. 10.9.04.
4. The learned SDR relies on the decision in case of Mangalam Cement Ltd. as reported in 2007 TIOL 906 CESTAT-DEL, wherein it has been held as follows:
17. The contention that the notices were barred by limitation is wholly misconceived in view of the fact that the revised show cause notices were issued as per the amended provisions of Section 73 which came into force from 10-9-2004 within one year from the relevant date which was defined in Sub-section (6) of Section 73 as under:
Section 73(6) – For the purposes of this section, ‘relevant date’ means, –
(h) in the case of taxable service in respect which service tax has not been levied or paid or has been short-levied or short-paid –
(a) where under the rules made under this Chapter, a periodical return, showing particulars of service tax paid during the period to which the said return relates, is to be filed by an assessee, the date on which such return is so filed;
(b) where no periodical return as aforesaid is filed, the last date on which such return is to be filed under the said rules;
(c) in any other case, the date on which the service tax is to be paid under this Chapter or the rules made thereunder;
17.1 It will be seen from the above provisions that the show cause notice was required to be served within one year from the “relevant date” in cases where there was no fraud, collusion etc. The “relevant date” in cases where periodic return is filed and in cases not 30-11-2003, which was the date extended by the Supreme Court, the show cause notices issued on 4-11-2004 were clearly within the prescribed period of one year.
18. For the foregoing reasons, the appeal of the Revenue is required to be allowed. However, since this will also result in restoring the penalty, it appears to us that, this is a fit case for invoking the provisions of Section 80 of the said Act, in view of the present respondents-assessees having pursued the matter in the writ petitions before Hon’ble the Supreme Court and having paying up the tax amount though after some time after their petitions were dismissed. We are, therefore, not inclined to restore the penalty imposed on the present respondents under Section 76 of the Act. Subject to this modification in the order-in-original, we allow the appeals of the Revenue and set aside the impugned order of the Commissioner (Appeals) and restore the orders-in-original made against these respondents-assessees.
5. In view of this, he submits that the show cause notice for recovery of service tax not paid for the earlier period can be issued within one year from 10.9.04. He also submits that the issue relating to time bar in case of retrospective amendment has been referred to the Larger Bench of the Tribunal in case of M/s Agauta Sugar & Chemicals, M/s Jaipur Glass & Potteries, M/s Guljag Industries Ltd. as reported in 2007-TIOL-1451-CESTAT-DEL.
6. The learned advocate appearing for the respondent submits that in case of Mangalam Cement Ltd., the relevant date for reckoning time limit for issue of show cause notice has been held to be 14.11.03; in the said case, show cause notice was issued on 4.11.04, whereas in the present case, the show cause notice has been issued only on 20.09.05, which is much beyond the one year limit prescribed from the relevant date which was held to be 14.11.03.
7. On a careful consideration, I find that the demand confirmed is based on the two amendments made one in 2003 and another in Oct.2004.
8. In such a situation, the question of fraud, collusion cannot arise. Tribunal’s decision in case of Mangalam Cement Ltd. cited supra holds that one year period should be considered from 14.11.03, the date prescribed for fulfilling the condition of filing returns by the recipients of services of goods and transport agency. In this case, the show cause notice has been issued after one year from the relevant date and therefore, the demand is time barred. No valid reasons have been adduced to interfere with the decision of the Commissioner (Appeals). The appeal is rejected.
(Dictated & Pronounced in Court)