VIJAYA ADVERTISERS Vs. COMMISSIONER OF CENTRAL EXCISE, TIRUPATHI

JUDGEMENT

(1.) THIS appeal arises from OIA No. 08/2004 -ST dated 20 -4 -2004 confirming duty demands on larger period besides confirming penalty. The contention of the appellant is that the demands are barred by time. They were holders of registration and were paying Service tax on the services rendered by them as Advertising Agency. They had paid tax upto November, December 1996 and could not pay the amount due to loss incurred by them from April 1999 onwards. The Department did not initiate any action for recovery of the amount despite being fully aware that the appellant had stopped paying the Service tax. The statement was recorded from the Managing Partner, Shri Raju on 13 -12 -2000 and the Show Cause Notice was issued on 7 -12 -2001. The only plea raised by the appellant is that the demands are hit by larger period. It was also contended that during the relevant period, there was no provision for recovering duty of extended period and it was only during 2004, the relevant section was amended for recovering the demands for larger period. It is further submitted that this bench, in the appellants own case, where he was a partner in Free Look Outdoor Advertising, the Tribunal, on the same set of facts, set aside demands for larger period by Final Order No. 2249/2005, dated 23 -12 -2005 [2006 (2) S.T.R. 102 (Tribunal)] and remanded the case for working out duty for the period within six months.

(2.) THE learned SDR opposes the prayer and contended that larger period was invokable as the appellants had stopped paying duty and that itself is sufficient to take a view that larger period was invokable.

(3.) ON a careful consideration, we notice that in an identical facts and circumstance, larger period has been set aside in the case of Free Look Outdoor Advertising by Final Order No. 2249/2005 dated 23 -12 -2005. The findings recorded in para 3 of the above Final Order is reproduced herein below: - 3. On a careful consideration of the matter, I find that the statements were recorded from the Proprietor on 13 -12 -2000 and the Show Cause Notice has been issued on 7 -12 -2001. There is no invocation of larger period in the Show Cause Notice. Therefore, the Department cannot enforce the demand for the larger period in the absence of invoking the larger period in the Show Cause Notice and due to inordinate delay in issuing the Show Cause Notice. Even on going through the Show Cause Notice, it is clear that the assessee had taken licence and paid Service tax and filed returns for the initial period and thereafter due to loss in the business, he failed to pay the Service tax. In these circumstances, the Department should have proceeded at the earliest to recover the dues from him. In view of the plea on the time bar, the demand for the larger period is set aside. The matter is remanded to the Original Authority to recalculate the demand arising within the time limit and fix appropriate penalty accordingly. The Original Authority should complete the proceedings within a period of four months from the date of receipt of this order, after providing an opportunity of hearing to the appellants.