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2016 (9) TMI 1413 - HC - Service TaxValidity of SCN - Maintenance or repair services - The respondent company was paying service tax from 01.07.2012 to 31.12.2013 under protest and thereafter the respondent company stopped payment of service tax to the department - case of appellant is that coercive measures to recover service tax cannot be taken without issuing a formal SCN - Held that - in the notification of the department it is clearly stated that depending upon the monetary limit Central Excise Officers have been authorised by the Board to issue notices under Section 73 of the Finance Act 1994. Circular No. 80/1/2005-ST dated 10.08.2005 based upon the N/N. 30/05-ST dated 10.08.2005 has been subsequently modified vide Circular No.130/ 12/2010-ST dated 20.09.2010. Section 73 of the Finance Act 1994 mandates determination of specific amount in the notice - In Hon ble Supreme Court in the case of State of West Bengal vs. Karan Singh Binayak 2002 (3) TMI 910 - SUPREME COURT it is held that inherent power under Section 151 of the CPC cannot be invoked to re-open settled matters. Since the order impugned in this Appeal is an order passed by the Writ Court in W.P. No. 36494 of 2015 on 04.02.2016 this Court does not possess any jurisdiction to annul or modify or invalidate or overturn the earlier decision of the Writ Court in W.P. No. 9496 of 2014 dated 02.04.2014 which is not the subject matter of the present Writ Appeal. We deem it fit that an opportunity should be given to the appellant department to put forth their contention on merits before the Writ Court along with the Miscellaneous Petition - the matter is remitted back to the writ court to reconsider the matter afresh - appeal allowed by way of remand.
Issues Involved:
1. Validity of the impugned show cause notice dated 12.10.2015. 2. Jurisdiction and authority to issue the show cause notice. 3. Compliance with the previous court order dated 02.04.2014 in W.P. No. 9496 of 2014. 4. Procedural requirements for issuing a show cause notice. 5. Maintainability of the modification petition filed by the department. Issue-wise Detailed Analysis: 1. Validity of the Impugned Show Cause Notice Dated 12.10.2015: The respondent challenged the show cause notice issued by the Commissioner of Service Tax, arguing that it was contrary to the earlier court order dated 02.04.2014. The court observed that the issuance of the second show cause notice was contrary to the direction of the court in W.P. No. 9496 of 2014, which had directed the department to treat the initial proceedings as a show cause notice and to pass orders after giving an opportunity for a personal hearing to the respondent company. The court held that the second show cause notice was liable to be set aside. 2. Jurisdiction and Authority to Issue the Show Cause Notice: The appellants argued that the show cause notice was issued in accordance with the provisions of Circular No. 80/1/2005-ST dated 10.08.2005 and subsequent circulars. They contended that the Central Excise officers were authorized to issue such notices based on the monetary limits specified. The court acknowledged the department's reliance on these circulars but emphasized that the procedural requirements must be strictly followed. 3. Compliance with the Previous Court Order Dated 02.04.2014 in W.P. No. 9496 of 2014: The court highlighted that the previous order had directed the department to treat the initial proceedings as a show cause notice and to pass orders after considering the objections of the respondent company. The issuance of a second show cause notice without complying with this direction was deemed a violation of the court's order. The court noted that the department did not file an appeal against the earlier order and only sought modification after a significant delay. 4. Procedural Requirements for Issuing a Show Cause Notice: The court reiterated the mandatory requirement of issuing a show cause notice in a specified format, as emphasized in the Supreme Court judgment in Metal Forgings vs. Union of India. The notice must indicate the amount demanded and call upon the assessee to show cause if they have any objections. The court found that the initial demand letter dated 28.03.2014 did not meet these requirements, and the subsequent show cause notice was issued without proper adherence to the procedural norms. 5. Maintainability of the Modification Petition Filed by the Department: The court considered the department's request to modify the earlier order and noted that the modification petition was filed after a significant delay. The court emphasized that the modification petition should have been filed at the earliest point of time. However, the court decided to remit the matter back to the writ court to reconsider the modification petition along with the writ petition on merits, ensuring that the department's contentions are heard. Conclusion: The court allowed the writ appeal, setting aside the order dated 04.02.2016 in W.P. No. 36494 of 2015. The matter was remitted back to the writ court to reconsider the modification petition and the writ petition on merits. The court emphasized the importance of adhering to procedural requirements and ensuring compliance with previous court orders. The connected miscellaneous petition was closed, and no costs were awarded.
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