2017 (7) TMI 453 - AT - Service Tax

Validity of SCN - SCN issued during pendency of finalization of assessment - Held that - the assessment for the impugned period has not been finalized. The finalization of the assessment is separate proceedings for which there is no bar on the Department and impugned show cause notice is not hurdle for finalization of the assessment in question - similar issue came up before the Hon ble Apex Court in the case of CCE, Mumbai Vs. ITC Ltd. 2006 (10) TMI 149 - SUPREME COURT OF INDIA , where it was held that during the pendency of finalization of assessment, no SCN can be issued - SCN were issued before finalization of assessment, therefore, the same are not sustainable in the eyes of law - appeal allowed - decided in favor of appellant.

Summary

Issues involved: Appeal against demand of Service Tax, legality of show cause notices issued during pending assessment.

Analysis:

1. Demand of Service Tax: The appellant appealed against an order confirming Service Tax demand with interest for the period from May 2003 to March 2004. The appellant, a provider of telecommunication services, had opted for provisional assessment due to uncertainty about their tax liability. Show cause notices were issued during the pending assessment, leading to the demand being confirmed with interest. The appellant contended that no show cause notice can be issued during the pendency of finalization of assessment.

2. Legality of Show Cause Notices: The key issue was whether the show cause notices issued by the Revenue to the appellant were legally sustainable. The appellant argued that as assessments were not finalized, the notices were not valid. The Tribunal referred to a previous case where the Hon'ble Apex Court observed that final assessment is a separate proceeding, and provisional duty is adjusted against the duty finally assessed. The Tribunal also cited a case where the High Court held that show cause notices cannot be issued without finalizing assessment proceedings. In the present case, the show cause notices were issued before finalization of assessment, rendering them legally unsustainable.

3. Judicial Precedents: The Tribunal relied on judicial precedents to support its decision. It referenced a case where the Hon'ble Apex Court clarified the process of final assessment and the adjustment of provisional duty. Additionally, a High Court case emphasized that show cause notices cannot be issued until final assessment proceedings are completed. These precedents supported the Tribunal's conclusion that the show cause notices issued in the present case were not legally sustainable.

4. Decision: Considering the arguments and legal precedents, the Tribunal concluded that the show cause notices issued before finalization of assessment were not legally valid. Therefore, the impugned proceedings against the appellant were set aside, and the appeal was allowed in favor of the appellant. The Tribunal's decision was based on the principle that show cause notices cannot be issued until assessment proceedings are finalized, as per established legal interpretations.

This detailed analysis of the judgment highlights the issues raised, the legal arguments presented, the relevant judicial precedents cited, and the ultimate decision reached by the Tribunal.