TRAVEL AID Vs. CCE (ST)

JUDGEMENT

(1.) THE appellants in the captioned appeals seek waiver of predeposit and stay of recovery of the amounts of service tax demanded from them as well as penalty imposed on them. Common prayer of the parties is that the appellants did not pay the service tax due from them under the category of "Tour Operator Service" for the period 1.4.2000 to 30.4.2001. On 30.4.2001, the Hon'ble Madras High Court had dismissed the Writ Petition filed by the appellants challenging constitutional validity of the impost. On 5.9.2001, the jurisdictional range officer wrote a letter to each of the appellants asking them to pay up the service tax not paid for the year 2000 -2001. The appeal of the parties against the communication dated 5.9.2001 was dismissed by the Commissioner (Appeals) on the basis that the letter did not constitute an appealable order. In September 2005, the Assistant Commissioner issued Show Cause Notices to the appellants invoking Section 73A alleging not filing of return and non payment of service tax due. Following the order of the Commissioner (Appeals) allowing an appeal of another assessee against similar demand on the ground of time bar, the original authority dropped the proceedings against the appellants. In the impugned order, passed in revision in terms of Section 84 of the Finance Act, 1994, the Commissioner has confirmed the demands proposed in the Show Cause Notice dated September 2005. Moving the application, ld. Counsel for the appellants submits that the Show Cause Notice issued in September, 2005 was clearly barred by limitation; department was aware of the non payment of tax by the appellants on account of the Writ Petition filed by them in the Madras High Court. Moreover, the jurisdictional range Superintendent also had written to them as early as 5th September, 2001 directing them to pay the service tax for the period 2000 -01. Therefore, the proceedings pursuant to the Show Cause Notice issued in 2005 were liable to be quashed.

(2.) LD . SDR reiterates the findings contained in the impugned order. She submits that the appellants had agitated the constitutional validity of the impost in question and they were aware of their liability to pay the tax due. Therefore, larger period was validly invoked and the order deserves to be sustained.

(3.) HEARD both sides. From the facts of the case, it is obvious that the Show Cause Notice issued in September 2005 after the jurisdictional Superintendent had addressed the same assessee to pay up the tax is clearly timebarred. Ld. SDR also did not contest the submissions made by the ld. Counsel that an order of the Commissioner (Appeals) dated 20.9.05 vacating demand for service tax for the same period in respect of another assessee on the ground of time bar has not been appealed against by the department. This also strengthens the case of the appellants. The appellants have made out a prima facie case against the demands. Accordingly there shall be full waiver of predeposit and stay of recoverey of the same during the pendency of the appeals.