By TIOL News Service

MUMBAI, JUNE 02, 2014: THIS is a Revenue appeal.

Your belief that the department has all the time in the world to indulge in issuing frolicsome SCNs and filing frivolous appeals would be strengthened upon going through the facts of this case. It is another thing that the departmental officers get paid for what they do but it is the assessee who has to hire Consultants and Advocates to attend to these!

Read further -

ASCN 24.07.2005 was issued to the respondent for the period April 2002 to October 2003 on the premise that the respondent had collected service tax but not deposited with the department in due time and, therefore, they are liable to pay interest.

The adjudicating authority confirmed the demand of interest and also imposed penalty.

Another SCN came to be issue on 03.10.2007 for the same period i.e. April 2002 to October 2003 demanding service tax along with interest and penalty.

The adjudicating authority, without appreciating that an earlier SCN for the same period & concerning the same issue had already been decided upheld the charges leveled.

Aggrieved, the said order was challenged by the respondent before the Commissioner (A)who held - that the show-cause notice dated 24.07.2005 is on the same issue wherein it was proposed that as the respondent delayed in making the payment, interest and imposition of penalty was also proposed. Therefore, for the same period, for the same demand, another show-cause notice dated 03.10.2007 is not sustainable, hence the same is void and illegal.

This should have been the end of the matter.

But, the Revenue, it seems, was aggrieved with this order and, therefore, an appeal was filed before the CESTAT.

The AR submitted – both the show-cause notices are for different course of action. Therefore, the impugned order is to be set aside.

The CESTAT observed –

“6. On perusal of the records, I find that in the show-cause notice dated 24.07.2005 the only allegation against the respondent is that the respondent has paid the service tax with a delay. Therefore, demand of interest and a penalty was also proposed for the period from April 2002 to October 2003. In the show-cause notice date d03.10.2007 also the demand is for the same period from April 2002 to October 2003, and the allegation is that the respondent has not paid the service tax in time. On perusal of the annexure to the show-cause notice, it appears that there is no short payment made by the respondent. In these circumstances, as there is no short payment of service tax, the show-cause notice dated 03.07.2007 was not required to be issued as for the same period, proceedings against the respondent has already been commenced through a show-cause notice dated 24.07.2005.”

Holding that there is no infirmity in the order of the Commissioner(A), the same was upheld and the Revenue appeal was DISMISSED.

(See 2014-TIOL-915-CESTAT-MUM)