2021 (10) TMI 124 - HC - GST

Jurisdiction - power of Additional/Joint Commissioner or a Commissioner to demand for service tax in excess of ₹ 50,00,000/- - applicability of CBEC circular bearing no. 1053/02/2017-CX, dated 10.03.2017 - no pre-show cause notice consultation was carried out - no hearing was given to the petitioner prior to passing of the impugned order - scope of remand order - refund of cess - Business Auxiliary Services - failure to pay service tax. HELD THAT - The petitioner claims that the injury inflicted was further compounded by not according personal hearing to the petitioner. It is in this context that, various flaws, in the impugned order, have been pointed out by the petitioner. Issue notice to the respondent/revenue, via all permissible modes including e-mail - List the matter on 03.12.2021.

Summary

Issues:
Challenge to Order-in-Original and show cause notice regarding service tax demand exceeding specified limits, lack of jurisdiction, absence of pre-show cause notice consultation, denial of hearing, exceeding scope of remand order, inaccuracies in show cause notice, and refund claim.

Analysis:
The petitioner challenged an Order-in-Original and a show cause notice related to service tax demand exceeding prescribed limits. The petitioner argued that the order was passed by an officer lacking jurisdiction for demands exceeding certain amounts, as per CBEC circular provisions. Additionally, the petitioner contended that no pre-show cause notice consultation was conducted as required by the circular. The petitioner also highlighted the absence of a hearing before the order was issued. Moreover, it was argued that the order went beyond the scope of a previous remand order by the Commissioner (Appeals-I) concerning a refund claim. The petitioner raised concerns about inaccuracies in the show cause notice, specifically regarding the payment of service tax. The petitioner's position was that it had deposited excess amounts and sought a refund for the surplus.

The court noted that in the initial round, the Order-in-Original denied a refund related to cess, leading to an appeal to the Commissioner (Appeals-I) who remanded the matter. The petitioner alleged that the adjudicating authority broadened the scope of the adjudication through the subsequent show cause notice and order, contrary to the remand order's limitations. The petitioner further claimed that not granting a personal hearing compounded the issue. The court acknowledged the flaws pointed out by the petitioner in the impugned order.

The court issued notice to the respondent/revenue for a counter-affidavit within four weeks. The respondent/revenue was instructed to specify the amounts paid by the petitioner towards service tax and cess during specific periods and the liabilities according to the ST-3 return. A stay was ordered on the operation of the impugned order until the next hearing scheduled for a later date. The comprehensive analysis covered the jurisdictional issues, procedural irregularities, scope of remand orders, inaccuracies in notices, and refund claims, ensuring a detailed examination of the legal aspects involved in the case.