2022 (5) TMI 570 - HC - Service Tax

Validity of SCN - earlier show cause notice was adjudicated by the Authority and the proceedings were dropped - advantage of extended period of lockdown once the similar issue has been adjudicated by the Authority - HELD THAT - The party against whom the show cause notice is issued has an opportunity to file his say and contest the show cause notice on merits. Prima facie, the earlier show cause notice issued to the petitioner and was adjudicated upon, recites about the Department s opinion on variation of taxable value reported in the returns fled for the period of 2012-13 and 2013-14. The basic premise for issuance of show cause notice in the year 2017 was, in the opinion of the Department, variation of taxable value as reported in the return by the assessee in 2012-13 and 2013-14, whereas the period involving the present show cause notice is 2014-2015, the same is spelt out in the present show cause notice. As prima facie the period of show cause notice do not overlap and they are distinct so also the earlier show cause notice and the present show cause notice does not appear to be for same period, we are not inclined to exercise the writ jurisdiction - In the case of Supermax Personal Care Pvt. Ltd. 2021 (4) TMI 368 - BOMBAY HIGH COURT decided by the Division Bench of this Court, the notice was issued by the Commissioner, Thane, who had no jurisdiction and the Court observed that the goods are manufactured at Una, Himachal Pradesh, the Commissioner at Thane had no jurisdiction to issue show cause notice/demand notice. In the present case, the period of present show cause notice and earlier show cause notice prima facie appear to be different and it is not the case of petitioner that the Authority issuing show cause notice inherently lacks jurisdiction - The writ petition is disposed of with liberty to the petitioner to file reply to the show cause notice and put-forth his stand.

Summary

Issues:
Challenge to show cause notice based on same cause of action and extended period of lockdown.

Analysis:
The petitioner challenged the show cause notice, arguing that it was bad in law on two counts. Firstly, the petitioner contended that being vexed on the same cause of action twice would violate Article 20(2) of the Constitution of India. Secondly, the Department was accused of taking advantage of the extended period of lockdown after a similar issue had been adjudicated previously. The petitioner's counsel referenced an earlier order by the Authority which had dropped proceedings after considering objections related to service tax not being paid on taxable services provided by the petitioner. The Authority had deemed the show cause notice for demanding service tax as unsustainable. The Department's plea that they were not aware of the petitioner's job work activities was considered perverse, as the Adjudicating Authority had already acknowledged the nature of the petitioner's work. The petitioner relied on legal precedents to support their arguments.

The Department's advocate argued that the periods covered by the earlier and present show cause notices did not overlap. The earlier notice pertained to service tax payment for 2012-13 and 2013-14, while the present notice dealt with an erroneous assessment of CENVAT credit for 2014-15. As the periods differed, the Department believed that the earlier order would not hinder issuing the present show cause notice.

The Court emphasized that it would only intervene in exceptional cases where a show cause notice was issued without jurisdiction. The party receiving the notice had the opportunity to respond and contest it on merits. The Court noted that the periods covered by the two show cause notices were distinct, with the earlier notice focusing on 2012-13 and 2013-14, while the present notice concerned 2014-15. As there was no overlap in periods, the Court declined to exercise its writ jurisdiction. Legal precedents were cited to support this decision, highlighting the importance of jurisdiction and limitation in similar cases.

Ultimately, the Court disposed of the writ petition, allowing the petitioner to file a reply to the show cause notice and present their stance. If a reply was submitted within fifteen days, it would be considered by the Competent Authority. However, if no reply was filed within the stipulated time, the Competent Authority was directed to proceed in accordance with the law. The Court clarified that it had not conclusively opined on the matter, leaving all contentions open for the Competent Authority to decide in accordance with the law. No costs were awarded in this case.