Nrc Ltd. Vs. Commissioner of C. Ex.

1. the matter has been posted today for deciding upon the appellant's plea of limitation. after hearing both the sides, we find that the show cause notice was issued on 23-6-03 for the period 16-7-1997 to 31-8-1999 on the alleged ground that the appellants, who are basically commission agents, are liable to pay service tax as clearing and forwarding agents. the notice proposed invocation of longer period of limitation.2. the above allegations were based upon the tribunal's decision in the case of prabhat zarda factory (india) ltd. v. commissioner of central excise, patna 2006 (2) s.t.r. 584 (t) : 2002 (50) rlt 326 (cegat cal.).we find that the said decision stands over-ruled by the larger bench of tribunal in the case of larsen & tonbro ltd. v. commissioner of central excise, chennai 2006 (3) s.t.r. 321 (tri.-lb). as such, we find that very basis of the proceedings initiated against the appellant was tribunal's decision in the case of prabhat zarda factory (india) ltd. 3. in view of the fact that the issue involved interpretation of legal proceedings as to whether the appellant could be considered as clearing and forwarding agents, it can be safely concluded that the appellants were under bona fide belief that they are not covered by the definition of said services. it was under that belief that the appellant did not apply for service tax registration and followed the subsequent procedures. the revenue has not placed any positive evidence record to show that the appellant suppressed the information with an intention to evade payment of duty. as such, we are of the view that the demand is barred by limitation. accordingly, we recall the earlier order [2006 (1) s.t.r. 145 (tribunal) : 2006 (4) s.t.r. 145 (tribunal)] passed on the appeal dismissing the appeal on merits. the impugned order is accordingly set aside and the appeal allowed on limitation.