Commissioner Of Central Excise, ... vs M/S. Wescar Cabs

[Arising out of Order-in-Appeal No.08/2012 (PST), dated 05.01.2012 passed by the Commissioner of Central Excise (Appeals), Chennai]

COMMISSIONER OF CENTRAL EXCISE, PUDUCHERRY APPELLANT

Versus

M/s. WESCAR CABS RESPONDENT

Appearance:

For the Appellant Ms. Indira Sisupal, AC (AR)

For the Respondent Shri R. Alwan, Adv.

CORAM:

Honble Shri D.N. Panda, Judicial Member

Date of hearing/decision 22-05-2015

FINAL ORDER NO. 40552 / 2015

Revenue submits that the receipts ot 2005-06 to 2008-09 escaped assessment. Therefore, that should have been assessed for which notice was issued.

2. Against the above contention of Revenue, learned Commissioner in paras 5.3 to 5.4 of his order observed as under:-

5.3 I find force in the argument of the appellant as it is admitted fact by the department that the appellant had registered themselves under the category of Rent-a-cab operators service on 25.10.2004 in the name and style of M/s. Wescar Cars and since then paying service tax and filing periodical ST-3 returns. Further, for the same issue covering the period 2006-07 & 2007-08 the jurisdictional Assistant Commissioner had issued a SCN No.29/09, dated 23.03.2009 and dropped proceedings vide Order-in-Original No.14/09-ST, dated 18.12.2009.

5.4 It is a settled law that the previous period 2006-07 and 2007-08 was covered for the same issue under previous SCH No.29/09, dated 23.03.2009 and proceedings were dropped, for the subsequent period SCH cannot be issued invoking extended period proviso, as the department is aware of the facts. Further, I find that the LAA had failed to note that for the one and the same issue covering the same period viz., 2006-07 & 2007-08, the department had issue two SCHs while the LAA had confirmed the demand, whereas the other dropped the proceeding which was accepted by the department since no review was taken and that order reached finality. Hence, the major portion of period is hit by limitation provided under the statute.

3. Law is well settled that when a show-cause notice is issued for a subsequent period, at a later date that itself comprises the entire facts and circumstances of the past period, which cannot be again re-opened. This can be said following the ratio laid down by the apex court in the case of Nizam Sugar Factory Vs Collector of Central Excise, A.P. reported in 2006 (197) E.L.T.465 (S.C.). Accordingly, Revenues appeal is dismissed. Consequently, the miscellaneous application stands disposed of. (Dictated and pronounced in open court)

(D.N. PANDA) JUDICIAL MEMBER

ksr 22-05-2015

DRAFT Remarks

I II III

Date of dictation 22.05.2015

Draft Order - Date of typing

Fair Order Typing .05.2015

Date of number and date of dispatch

4 ST/00202/2012