ORDER
S.L. Peeran, Member (J)
1. The Miscellaneous and Stay applicatons are taken up for consideration. The appellants seeks waiver of pre-deposit of Rs. 34,78,209/- and likesum as penalty. The Commissioner proceeded against the assessee by issue of show cause notice dated 3-4-2003 to raise the demands under provisions of Sections 67 & 68 of Chapter V of the Finance Act, 1994 on the appellants against suppression of value of taxable service with an intend to evade payment of the same. The simple contention raised by the assessee is on this very issue, the matter was adjudicated by ACCE, Service Tax and dropped the proceedings by this Order No. 7/02, dated 6-5-2003. In terms of the provisions of Section 84 of the Finance Act, 1994, the Commissioner has power to review his order. But instead of reviewing it, he has issued fresh show cause notice alleging suppression, which is not as per law and not sustainable. He submits that in any case, the facts were known to the Department and the matter had been adjudicated and therefore, the demands are barred by time, as the value has not been suppressed and the correct value has been declared. The learned Counsel further submits that the value of taxable service has also not been furnished in the show cause notice. The show cause notice is issued without any proper grounds and hence is not sustainable.
2. The learned JDR defends the order and prays for putting the assessee on terms.
3. On a careful consideration, we find that the assessee has taken very sustainable and legal grounds. Prima facie, the order is not sustainable in law. The matter had been adjudicated by the AC on this very issue and demands had been dropped. The Commissioner ought to have reviewed the matter and should have passed an order in terms of Section 84 of the Finance Act. He has failed to do so. Therefore, the proceedings invoking larger period is not sustainable. The demands are barred by time and there cannot be any recovery in this case. Hence, the stay application is allowed unconditionally granting full waiver and staying its recovery. As full waiver has been granted, the matter to be heard out of turn. Therefore, the matter to come up for final hearing on 1st June, 2006. The Miscellaneous and Stay applications are allowed.
(Pronounced and dictated in open Court)