8/7/2019 Vijaya_Advertisers_vs_Commissioner_Of_Central_Excise_on_6_January,_2006

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Bench: S Peeran, J T T.K.

Vijaya Advertisers vs Commissioner Of Central Excise on 6/1/2006

ORDER

S.L. Peeran, Member (J)

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 appellant's own case, where he was a partner in Free Look Outdoor Advertising, the Tribunal, onthe 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 on13-12-2000 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.

4. By applying the ratio of the above finding in the present case, we set aside the demand for the larger period

and remand the case to the original authority to re-work out the duty for six months period in terms of the

direction given in the above cited order. The matter shall be disposed of within four months from the receipt

of this order after providing an opportunity of hearing to the appellants.

(Operative portion of this Order was pronounced in open court on conclusion of hearing)

Vijaya Advertisers vs Commissioner Of Central Excise on 6 January, 2006

Indian Kanoon - http://indiankanoon.org/doc/402869/ 1

http://indiankanoon.org/doc/821561/http://indiankanoon.org/doc/821561/