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2016 (8) TMI 94 - HC - Service TaxBest judgement assessment to determine service tax liability - Validity of show cause notice - failure of the Respondent to furnish the requisite information, and further failure to file returns under Section 70 of the Finance Act, 1994 - Held that - In the impugned order, the CESTAT noted that in the SCN there was no allegation that in terms of Section 72 (b) of the Act, the Respondent had filed a return and failed to assess tax in accordance with the provisions of law. The SCN entirely proceeded on the basis that the Respondent had failed to file a return which was factually incorrect. Further the letters by which information was asked for the period in question failed to specify what information was to be provided. Consequently the SCN was only on the basis of assumption and presumption. Consequently, the CESTAT held the SCN to be not maintainable. Department, was unable to point out how Section 72 (a) could possibly be invoked when a admittedly the return for the period April to September, 2009 had been filed on 22nd October 2009 and for the period October 2009 to March 2010 on 22nd April 2010 with the jurisdictional service tax office. Therefore, the factual basis on which the SCN was issued invoking Section 72(a) of the Act was nonexistent. Secondly, the SCN does not make out a case for invoking Section 72 (b) of the Act. Consequently, the question of adopting best judgment assessment did not arise. Consequently, the CESTAT was right in concluding that the second SCN dated 20th October 2010 was not maintainable. - Revenue appeal dismissed.
Issues:
Challenge to order reversing maintainability of Show Cause Notice dated 20th October 2010. Analysis: The appeal by the Service Tax Department (Department) challenges the Central Excise Service Tax Appellate Tribunal's (CESTAT) order dated 6th October 2015, which overturned the Commissioner (Appeals) order of 1st March 2012, concluding the maintainability of the Show Cause Notice (SCN) dated 20th October 2010. The initial SCN was issued on 8th April 2010, categorizing services provided by the Respondent as "tour operator services" and "business auxiliary services" for the period 2004-05 to 2008-09. Subsequently, the Respondent was asked for information for the period April 2009 to March 2010, but failed to do so, leading to the issuance of the impugned SCN invoking Section 72 of the Finance Act, 1994. The crux of the matter lies in the interpretation of Section 72 of the Act, which allows for Best Judgment Assessment in two scenarios: when a person fails to furnish a return under Section 70, or when a person fails to assess the tax in accordance with the provisions of the Act. The Department alleged that the Respondent failed to furnish returns under Section 70 and invoked Section 72(a) of the Act. However, the Respondent contended that they had filed returns in Form ST-3 for the period in question, challenging the basis for invoking Section 72(a). The adjudicating authority held that the Department was justified in invoking Section 72 to protect government revenue as the Respondent failed to provide the requested information. The Commissioner (Appeals) upheld this decision, emphasizing that even if the second SCN was not maintainable, the tax liability remained due to the first SCN. However, the CESTAT found the second SCN to be not maintainable as it lacked allegations under Section 72(b) and failed to specify the information required from the Respondent. In light of the Division Bench's observations in Mega Cabs Pvt. Ltd. v. Union of India, the CESTAT's conclusion that the second SCN was not maintainable was deemed correct. The Court found no substantial question of law arising from the CESTAT's order, leading to the dismissal of the appeal and pending applications.
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