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2014 (9) TMI 675 - HC - Service TaxValidity of show cause issued beyond limitation period - Non issuance of Show Cause treating the interim order of the High Court as stay - Held that - there was no stay of any proceedings for recovery of tax in accordance with law. - The appellant (Revenue) appears to have misunderstood the interim orders of this Court and did not take any action by way of issuing a show cause notice to the assessee for recovery of service tax. It is only after the aforesaid writ petition was disposed of that the appellant issued a show cause notice to the assessee on 19-10-2005 seeking to recover Service Tax. The interim order passed by this Court did not stay service of notice, but only prevented the appellant from recovering tax, which was assessed ex parte and also required the assessee not to file the returns. - revenue s appeal dismissed - Decided against the revenue.
Issues Involved:
Appeal under Section 35G of the Central Excise Act, 1944 challenging Final Order Nos. 228 & 229/2011; Barred by time show cause notice; Interpretation of Section 73 of the Finance Act, 1994; Effect of interim stay on notice period calculation; Applicability of Supreme Court decision in Gokak Patel Volkart Limited v. CCE [1987 (28) E.L.T. 53 (S.C.)]. Analysis: The High Court dealt with an appeal challenging Final Order Nos. 228 & 229/2011 under Section 35G of the Central Excise Act, 1944. The Tribunal had opined that the show cause notice issued to the assessee was time-barred. The dispute arose from services received by the assessee from Goods Transport Operators during a specific period. A letter directing payment of Service Tax was issued to the assessee based on a communication from the Director General of Service Tax. The assessee, aggrieved by this letter, filed a writ petition resulting in an interim stay on tax recovery. However, the Court clarified that the stay did not halt the issuance of a show cause notice for tax recovery. The appellant failed to act promptly after the writ petition was disposed of, leading to a delayed show cause notice issued in 2005 for Service Tax recovery. The Tribunal sided with the assessee, holding the notice as time-barred. The assessee relied on Section 73 of the Finance Act, 1994, concerning the recovery of unpaid Service Tax and the exclusion of stay period from notice calculation. The Court emphasized that since the interim order did not stay the notice service, Section 73 could not aid the appellant's case. The Court referenced a Supreme Court decision in Gokak Patel Volkart Limited v. CCE [1987 (28) E.L.T. 53 (S.C.)] involving a similar issue of stay impact on notice period calculation. The Supreme Court's stance was clear that unless an interim direction specifically addresses notice issuance or duty levy, the stay period does not affect notice timelines. Drawing from this precedent and a plain reading of Section 73, the High Court dismissed the appeal, concluding that no substantial legal question arose for consideration in this matter.
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