2015 (10) TMI 1307 - HC - Service Tax

Demand under Section 87 from debtors of Petitioner Recovery order issued within two days of SCN No final adjudication in case of Service Tax liability Held That - Claim under Section 87 can be made only when final adjudication has been done after quantifying the amount due and payable by the assessee Liability of Petitioner yet to be crystallised; Resorting to Section 87 is not permissible Decision made in the case of R. V. Man Power Solution v. Commissioner of Customs and Central Excise 2013 (4) TMI 294 - UTTARAKHAND HIGH COURT followed - Appeal Allowed in favour of the assessee.

Summary

Issues:
1. Unilateral assessment of service tax liability without issuance of demand notice.
2. Issuance of notices under section 87 of the Finance Act to petitioner's clients.
3. Validity of actions taken by the respondents without final adjudication.
4. Interpretation of section 87 of the Finance Act regarding recovery procedures.
5. Impact of respondents' actions on petitioner's reputation and business.

Issue 1: Unilateral assessment of service tax liability without issuance of demand notice

The petitioner, a partnership firm providing industrial and civil work services, faced allegations of irregularities in service tax payments by the first respondent. Despite paying a significant amount of service tax, the respondent unilaterally calculated a higher liability without issuing any demand notice or allowing the petitioner a chance to be heard. The petitioner argued that without a final assessment or demand notice, the drastic measure of issuing garnishee orders to clients was unwarranted and arbitrary. The court agreed, emphasizing the necessity of due process and quashed the impugned notices.

Issue 2: Issuance of notices under section 87 of the Finance Act to petitioner's clients

Post the unilateral assessment, the respondents issued notices under section 87 of the Finance Act to the debtors of the petitioner, directing them to deposit monies payable to the petitioner directly to the Central Government. The petitioner contended that such action was extreme and unwarranted without a formal assessment or demand notice. The court concurred, highlighting that such measures should only be taken after a final adjudication of the amount due, which was absent in this case. Consequently, the court quashed the impugned notices issued to the petitioner's clients.

Issue 3: Validity of actions taken by the respondents without final adjudication

The court noted that the proceedings against the petitioner were still at the show cause notice stage, with no final adjudication of the service tax liability. Despite unilaterally determining the liability amount, the respondents had not issued a formal demand notice to the petitioner. The court emphasized that without a crystallized liability and in the absence of due process, resorting to section 87 of the Act for recovery was impermissible. Consequently, the court ruled in favor of the petitioner, emphasizing the importance of following proper legal procedures.

Issue 4: Interpretation of section 87 of the Finance Act regarding recovery procedures

The court examined the provisions of section 87 of the Finance Act, which outline the recovery procedures for amounts due to the Central Government. Citing precedents from other High Courts, the court emphasized that recovery under section 87 could only be initiated after a final adjudication of the amount due. As the petitioner's liability was yet to be determined conclusively, the court deemed the actions taken by the respondents under section 87 premature and not in accordance with the law.

Issue 5: Impact of respondents' actions on petitioner's reputation and business

The court acknowledged that the unilateral and extreme actions of the respondents, such as issuing garnishee orders to the petitioner's clients, could harm the petitioner's reputation and business. By bypassing formal procedures and resorting to drastic measures without a finalized assessment, the respondents risked damaging the petitioner's goodwill and standing in the market. In light of these considerations, the court quashed the impugned notices while directing the petitioner to deposit a specified sum within a set timeframe.

In conclusion, the judgment highlighted the importance of following due process, conducting final adjudications before resorting to recovery measures, and safeguarding the reputation and business interests of entities involved in legal proceedings.