Bharati Sapru, J. - This Central Excise Appeal under Section 35G of the Central Excise Act, 1944 has been preferred by the Revenue before this Court against the Final Order No. ST/A/71157/2017-CU(DB), dated 3-7-2017, in Service Tax Appeal No. ST/53480/2014, passed by Customs, Excise and Service Tax Appellate Tribunal, Allahabad whereby the Appellate Authority had allowed the appeal of the respondent-assessee.

2. Following question of law has been framed for answering by this Court :-

"Whether the CESTAT has committed an error of law in deciding the issue of limitation, especially on account of strong documentary evidence provided by the department"

3. The respondent M/s. Zee News Ltd. is engaged in news business and in the business of broadcasting other entertainment programs. It is registered with the department for payment of service tax on providing services of Broadcasting Franchise & Renting of immovable property. The Commissioner (Excise), Noida issued a show cause notice (hereinafter referred to as SCN), dated 31-3-2013 (Annexure-2) to the respondent stating that during the course of scrutiny of the records of the respondent by audit, it was observed that the assessee was receiving various images and text material by way of retrieval from the website of foreign companies viz. M/s. Reuters, ATPN under the proper agreements. Those images/text materials were used by Zee News Ltd. in their rendering On Line information and Data Based Access or retrieval service for receiving such material from the said foreign based companies. For the Financial Years 2007-2008 to 2010-2011 amount of Rs. 1,15,39,998/-, Rs. 9065790/-, Rs. 9442120/- and Rs. 9751333/- was paid by them in each Financial Year respectively which attracted service tax amounting to Rs. 45,23,799/-, but same had not been paid under reverse charge mechanism under Section 66A of the Finance Act, 1994 (hereinafter referred to as the Act).

4. It was further said that the scheme of demerger under Sections 391 to 394 of the Companies Act, 1956 between Zee News Ltd. and Zee Entertainment Enterprises Limited and their respective shareholders and creditors was sanctioned by the Bombay High Court and was filed with Registrar of the Companies. Pursuant to the said scheme, Regional General Entertainment channels viz. Zee Bangla, Zee Marathi, Zee Telugu, Zee Talkies, Zee Cinema, Zee Gujarati & Zee Kannada were transferred to M/s. Zee Entertainment Enterprises Limited w.e.f. 1-1-2010 on going concern basis. Assets and liabilities in respect of aforementioned channels thus, were transferred to M/s. Zee Entertainment Enterprises Limited.

5. On examination of Cenvat accounts, it was noticed that the respondent had taken credit of input service in respect of outgoing six channels transferred to M/s. Zee Entertainment Enterprises Limited. Therefore, the audit had bifurcated the credit for the period January, 2010 to March, 2010 which involves credit of input service relating to the six channels to the tune of Rs. 6,67,92,233/- out of total credit aggregating to Rs. 8,47,08,673/-.

6. It was said that Cenvat credit, amounting to Rs. 6,67,92,233/- was inadmissible and it was taken in contravention of Rule 9(2) of Cenvat Credit Rules, 1994. The respondent was, therefore, required to show cause as to why the amount of Rs. 45,23,799/-including the Education Cess and Higher Education Cess being service tax short paid during the Financial Years 2007-08 to 2010-11 should not be demanded and recovered along with interest and penalty and why Cenvat credit of Rs. 6,67,92,233/- wrongly availed should not be demanded and recovered along with interest and penalty.

7. The respondent besides contesting the SCN on merits took the objection that the SCN was barred by limitation as extended period of time was not applicable in the facts and circumstances of the case. As per Section 73 of the Act, in normal case, SCN can be issued at any time within eighteen months from the relevant date. Therefore, proviso to Section 73(1) of the Act provides that SCN can be issued at any time within 5 years from the relevant date, if duty was not paid or levied by reason of fraud or collusion or wilful misstatement or suppression of facts or contravention of any of the provisions of the Act or Rules with intent to evade payment of such duty. Thus, the extended period of limitation would be available only if any of the ingredients of proviso to Section 73(1) of the Act were attracted and not otherwise.

8. In the present case the period covered by the SCN was from January 1, 2010 to March 19, 2010. The SCN was, dated 31-3-2013. Similarly, for demand pertaining to development and supply of content service the period involved was 2007-08 to 2010-11 and the SCN was issued after eighteen months limitation period invoking the extended period of limitation. The reason given for invoking the extended period was that above facts came to the notice of the Department only during scrutiny of records e.g. ledger, balance sheet, invoices, Cenvat credit accounts etc., maintained by the respondent and such details were not disclosed to the department at any stage in any report or returns and thus, the respondent had suppressed the facts and the proviso to Section 73(1) of the Finance Act, 1994 was applicable to the instant case.

9. The assessee took the stand that they had never suppressed or misrepresented any fact relating to the availment of Cenvat credit from the Department. The respondent had been maintaining proper records of the Cenvat credit availed and utilised and had also been filing the returns regularly. The effective date of the merger, when the copy of the order was filed with the Registrar of Companies was on 29-3-2010. It was submitted that the stand of the Department that only during the scrutiny of records and returns of the respondent they could come to know about these facts and they were not aware of the demerger, could not be believed when there was High Court order regarding demerger.

10. The respondent had been receiving video images and audio etc. from ATPN and Reuters Ltd. since 2007 onwards. It was part of usual business practice of the respondent. Therefore, It was not correct to say that Department was not aware of the fact that the respondent had entered into agreement with ATPN and Reuters Ltd. for receiving video and audio etc. The copies of the agreements with ATPN and Reuters Limited for the period 2007-08 to 2010-11 were produced along with the reply to SCN.

11. It was also submitted that in any case, the respondent had been regularly filing its returns with the Department. Along with the ST-3 returns, the respondent was also filing Cenvat details. The said returns contained all the details relating to the Cenvat credit availed by the respondent on various input services. The respondent took the stand that returns on the basis of self-assessment filed by the respondent were verified by the Department. In such a situation, the Department could not allege suppression by the respondent.

12. Commissioner (Excise) adjudicated the SCN and vide order, dated 19-3-2014 rejected the claim of the respondent on merits and confirmed the payment of Rs. 45,23,799/- for service tax and Rs. 6,67,92,233/- for wrongly availing Cenvat credit by the respondent. He also imposed the penalty of the equal amount along with the interest.

13. With respect to invocation of extended period of limitation under proviso to Section 73(1) of the Act, it was held that the respondent suppressed the vital information in their statutory returns and, therefore, the ingredients of proviso to Section 73(1) of the Act specifically existed in the case of the respondent and rejected the objection of the respondent that the grounds for invocation of extended period of 5 years were not present for issuing SCN after expiry of 18 months from the closure of financial year.

14. Aggrieved by the aforesaid adjudication of the SCN of the Commissioner (Excise), the respondent filed Appeal No. ST/53480/2014-CU(DB) with Stay Application No. ST/Stay/53891/2014. The Tribunal vide final order held that there was no element of suppression, concealment or any action or inaction on the part of the respondent to evade payment of duty nor any collision etc., existed so as to attract the proviso to Section 73(1) of the Act read with Section 11A of the Central Excise Act.

15. The Tribunal held that the SCN was bad for invoking the extended period of limitation. Revenue had got all the informations from the records maintained by the respondent in the ordinary course of their business which was clear from the SCN itself and there was not even a single instance of any manipulation or suppression and/or misinformation which could be pointed out in the SCN except for bald allegation. Thus, Tribunal allowed the appeal and set aside the order passed by the Commissioner (Excise). The Tribunal did not enter into the merits of the case.

16. Heard Sri B.K. Raghuvanshi, Learned Counsel for the Revenue and Mr. Atul Gupta, Learned Counsel for the respondent.

17. SCN itself shows that every details was maintained by the respondent in their usual course of years. They had not suppressed or manipulated any fact to evade the payment of service tax or to avail Cenvat credit. When the ingredients of proviso to Section 73(1) of the Act were not present, the invocation of extended period of limitation was not correct to issue SCN.

18. We, therefore, affirm the view taken by the Tribunal.

19. The question of law is, therefore, answered in favour of the assessee and against the Department.

20. The appeal is, accordingly, dismissed Appeal dismissed.