2017 (3) TMI 1416 - HC - Service Tax

Challenge to the Show Cause Notice (SCN) - Maintainability of petition - statutory remedy of appeal - it was submitted that the SCN is vague and has been issued on the basis of assumption. It does not contain any allegation that, the first petitioner is liable to pay Service Tax - manpower recruitment or agent service - providing services without obtaining registration - Held that - Existence of a statutory alternative remedy is not a complete bar to the maintainability of a writ petition. The rule of exclusion of writ jurisdiction by availability of an alternative remedy is a rule of discretion and not one of compulsion - While examining an order passed by a statutory authority in a quasi judicial proceeding, the Writ Court is not called upon to sit in appeal over such order, reappraise the evidence and substitute the findings arrived at by the deciding authority with its own findings, unless it is substantiated that, the impugned findings are perverse or are contrary to public policy. In the present case, it cannot be said that the authorities had acted without any basis in issuing a SCN. The SCN was issued on the basis of materials as narrated above. It is detailed. The department has valid reasons to issue the same. The charges are based on cogent materials and evidence. It does not violate any law. The petitioners have not been able to establish that, the department had violated any law in issuing the SCN or that the SCN contains any charges which is contrary to any law. Petition dismissed - decided against petitioner.

Issues Involved:
1. Maintainability of the writ petition despite the existence of a statutory alternative remedy.
2. Validity and legality of the show-cause notice issued by the department.
3. Alleged violation of principles of natural justice by the department.
4. Applicability and interpretation of Sections 73 and 73A of the Finance Act, 1994.
5. Allegation of review of an earlier order by the department.
6. Contention of the petitioners being placed in a worse position due to filing the writ petition.

Detailed Analysis:

Maintainability of the Writ Petition:
The court first addressed the issue of whether the writ petition is maintainable despite the existence of a statutory alternative remedy. It was noted that the rule of exclusion of writ jurisdiction by availability of an alternative remedy is a rule of discretion and not one of compulsion. A writ petition is maintainable if the impugned order violates any fundamental right, is passed wholly without jurisdiction, is perverse, or fraught with illegalities that shock the conscience of the Court. The court emphasized that while examining an order passed by a statutory authority in a quasi-judicial proceeding, the Writ Court is not called upon to sit in appeal over such order unless the findings are perverse or contrary to public policy.

Validity and Legality of the Show-Cause Notice:
The petitioners contended that the show-cause notice dated October 17, 2012, was vague and issued on the basis of assumptions without proper allegations. They argued that the burden of proof is on the taxing authority to show that a particular receipt is taxable, citing various precedents. The court found that the show-cause notice was issued based on detailed investigations and cogent materials, including statements from various persons. The court held that the show-cause notice was valid and did not violate any law, and that the petitioners had not succeeded in having it set aside in an earlier writ petition.

Alleged Violation of Principles of Natural Justice:
The petitioners argued that the department violated the principles of natural justice by not properly analyzing their activities and by taking figures from their balance sheet without notice. The court noted that the petitioners were afforded multiple opportunities for personal hearings and had submitted various written submissions. The court found that the department had duly considered the petitioners' replies and submissions, and there was no violation of natural justice.

Applicability and Interpretation of Sections 73 and 73A of the Finance Act, 1994:
The petitioners contended that the show-cause notice incorrectly applied Section 73A instead of Section 73 of the Finance Act, 1994. The court noted that the adjudicating authority had correctly differentiated between the two sections and found that the petitioners were liable under Section 73(2) of the Act. The court held that the applicability of the section under which the petitioners were charged was not incorrect, and the petitioners were well aware of the charges against them.

Allegation of Review of an Earlier Order:
The petitioners argued that the impugned order dated August 18, 2016, essentially reviewed an earlier order dated March 10, 2016, which had dropped a demand of ?1.27 Crores. The court clarified that the earlier order was set aside by the High Court on May 19, 2016, and therefore, the question of reviewing the earlier order did not arise.

Contention of Petitioners Being Placed in a Worse Position:
The petitioners claimed that they were placed in a worse position due to filing the writ petition. The court found that the first writ petition was disposed of by affording the petitioners another opportunity of hearing, and the petitioners were not placed in a worse position. The court held that the petitioners had not substantiated any portion of the impugned order as perverse.

Conclusion:
The court dismissed the writ petition, finding it devoid of merits. The court held that the show-cause notice was valid, the department had not violated any principles of natural justice, and the petitioners were not placed in a worse position by filing the writ petition. The court emphasized that the petitioners' reliance on numerous authorities was unnecessary and their contentions were without merit.

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