TIL LTD. Vs. COMMISSIONER OF SERVICE TAX, KOLKATA

JUDGEMENT

(1.) HEARD both sides.

(2.) ƒLearned ACA, Shri Anjan Sarkar arguing for the appellants states that the impugned demand has been made for the year, 2000 -2001 through a show cause notice issued on 20 -6 -05. The show cause notice does not give the basis of calculation for arriving at the demanded amount and despite a plea made to the Adjudicating Commissioner, no basis was provided to the appellants. He states that the demand has been made on the basis of the figures contained in the Annual Report including the Balance Sheet and Profit and Loss Account. Though the appellants had submitted details of nearly 500 transactions showing that the amounts received by them were only on account of maintenance and repairs, the Adjudicating Commissioner has not dealt with the same. He, further, states that the Adjudicating Commissioner has wrongly applied the decision in the case of M/s Nokia (I) Pvt. Ltd. v. Commissioner of Customs, Delhi - 2006 (1) S.T.R. 233 (Tri. -Del.), whereas the same is not applicable, as unlike in the case of M/s Nokia (I) Pvt. Ltd. (cited supra), there was no supply or maintenance of software in this case. Finally, he very strongly argues that the entire demand made beyond the normal period of limitation is not sustainable, as no ground was made out in the show cause notice for invoking the longer period and in fact, the longer period of limitation provided under the proviso to sub -section (1) of Section 73 of the Finance Act, 1994 was not at all invoked.

(3.) HEARD the learned S.D.R., Shri J.K. Jha for the Revenue. At the stage of deciding the Stay Petition, this Bench had waived the predeposit on the ground that the extended period of limitation was not specifically invoked, nor any allegation of fraud, misstatement etc. was made in the show cause notice. Learned S.D.R. states that a clarification in this regard was asked for from the Jurisdictional Commissioner on 1 -11 -07. But till date, no reply has been received from the Jurisdictional Commissioner.