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2018 (2) TMI 86 - HC - Service TaxValidity of show cause notice - Liability of service tax - activity of generating electricity - negative list - opportunity of being heard - principles of natural justice - Held that - The petitioner conceded to the request made by the respondent for furnishing copies of invoices which were furnished on 22.09.2015 and 23.09.2015. Immediately thereafter, the Miscellaneous Petition has been filed on 09.10.2015 for modification. One more reason which will work against the writ petitioner is that though the Court stipulated a time frame for the second respondent to pass orders, the petitioner did not approach the Court complaining of any violation of the time frame fixed - petitioner was not prejudiced in any manner on account of no action being taken by the Revenue between 16.09.2014 and 02.09.2015. Whether the petition for modification is maintainable? - Held that - There can be no dispute to the legal position that a review petition is not an appeal in disguise. The grounds of review are clearly circumscribed under Order 47 Rule 1 CPC. However, it has to be borne in mind that the present proceedings is a writ proceedings arising under a taxation statute. The prayer sought for in M.P.No.1 of 2015, in my considered opinion, cannot be construed as a prayer to review the order passed in the writ petition. On a reading of the proceedings dated 28.03.2014, it is clear that it is only an intimation. This is on account of the fact that the petitioner stopped paying service tax from 01.01.2014. Therefore, the second respondent requested the petitioner to pay service tax, failing which stated that action for recovery will be initiated. Thus, the communication/intimation dated 28.03.2014 cannot be treated as a show cause notice nor can be treated as a demand but only as an intimation - the petition for modification cannot be construed as a review petition but only to modify the earlier order by permitting issuance of a show cause notice instead of treating the communication dated 28.03.2014 as a show cause notice, which is not feasible as it is not in accordance with Section 73(1) of the Act. The petitioner had pressed for hearing of the modification petition. However, on 04.02.2016, the writ petition in W.P.No.36494 of 2015 alone was listed and M.P.No.1 of 2015 in W.P.No.9496 of 2014 was not listed, and the writ petition was disposed of. The revenue cannot be prejudiced on account of non-listing of M.P.No.1 of 2015. In the factual background could the respondent Department be faulted for issuing the impugned show cause notice, is the conduct of the Department in violation of the order in W.P.No.9496 of 2014 or contumacious. The answers to all the above queries should lean and be answered in favour of the Revenue - there is no violation of the order in W.P.No.9496 of 2014 much less willful violation in issuing the impugned show cause notice. Thus the impugned show cause notice can be adjudicated as according to law, giving liberty to the petitioner to canvass all points. The petitioners are granted thirty days time from the date of receipt of a copy of this order to submit their reply to the show cause notice which shall be adjudicated in accordance with law after affording an opportunity of personal hearing to the authorized representative of the petitioner.
Issues Involved:
1. Legality of the show cause notice dated 12.10.2015. 2. Validity of the modification petition M.P.No.1 of 2015. 3. Jurisdiction and authority of the Assistant Commissioner to issue the show cause notice. 4. Compliance with procedural requirements under Section 73(1) of the Finance Act, 1994. 5. Timeliness and procedural correctness in issuing the show cause notice. Detailed Analysis: 1. Legality of the Show Cause Notice Dated 12.10.2015: The writ petition W.P.No.36494 of 2015 sought to quash the show cause notice dated 12.10.2015, claiming it was illegal, arbitrary, and violative of Articles 14, 19(1)(g), and 300A of the Constitution of India. The Court found that the show cause notice was issued based on information collected from the petitioner, which was provided without any demur. The Court held that the notice did not constitute a demand but was merely an intimation due to the petitioner’s abrupt cessation of service tax payments from 01.01.2014. The Court concluded that there was no mischief or change of stand by the Department, and the notice was valid. 2. Validity of the Modification Petition M.P.No.1 of 2015: The modification petition M.P.No.1 of 2015 sought to modify the order in W.P.No.9496 of 2014, which directed the petitioner to treat the communication dated 28.03.2014 as a show cause notice. The Court determined that the petition for modification was maintainable and did not constitute a review petition. The Court emphasized that the communication dated 28.03.2014 was only an intimation and not a formal show cause notice as required under Section 73(1) of the Finance Act, 1994. Thus, the modification petition was allowed, permitting the appropriate authority to issue a proper show cause notice. 3. Jurisdiction and Authority of the Assistant Commissioner: The respondents argued that the Assistant Commissioner who issued the communication dated 28.03.2014 lacked jurisdiction to adjudicate cases exceeding ?5 lakhs, as per Circular No.80/1/2005-ST dated 10.08.2005. The petitioner countered that the term "Central Excise officer" includes an Assistant Commissioner, and there is no monetary classification under Rule 3 of the Service Tax Rules. The Court did not render a definitive finding on this aspect but left the issue open for further consideration. 4. Compliance with Procedural Requirements Under Section 73(1) of the Finance Act, 1994: The Court highlighted that Section 73(1) of the Finance Act mandates a proper show cause notice specifying the amount demanded and providing an opportunity for the assessee to respond. The communication dated 28.03.2014 did not meet these requirements and was deemed an intimation rather than a show cause notice. The Court modified the earlier order to allow the issuance of a proper show cause notice by the appropriate authority. 5. Timeliness and Procedural Correctness in Issuing the Show Cause Notice: The petitioner argued that the Department’s delay in issuing the show cause notice and the subsequent issuance without the Court’s leave amounted to a violation of the Court’s order. The Court found that the modification petition was filed before the show cause notice was issued, and the delay did not prejudice the petitioner. The Court concluded that there was no willful violation or abuse of law by the Department, and the show cause notice could be adjudicated according to law. Conclusion: The Court allowed the modification petition M.P.No.1 of 2015, permitting the issuance of a proper show cause notice. Consequently, W.P.No.36494 of 2015 was dismissed, granting the petitioner thirty days to respond to the show cause notice, which would then be adjudicated in accordance with law. The connected miscellaneous petitions were also closed.
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