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TMI Blog2010 (12) TMI 79X X X X Extracts X X X X X X X X Extracts X X X X ..... nted by: Mr. Mirza Aslam Beg for Ms. Sonia Sharma, Adv., Mr. Mukesh Anand with Mr. Shailesh Tiwari, Adv. JUDGEMENT By this writ petition, preferred under Articles 226 and 227 of the Constitution of India, the petitioner has prayed for issue of a writ of certiorari for quashment of the show cause notice dated 15.10.2010, i.e. Annexure P-1, issued by the Commissioner of Service Tax, the respondent No.2 herein, on the ground that the same is without jurisdiction and violative of the provisions of law and further to issue a writ of mandamus / direction declaring that the petitioner is not liable to pay service tax in respect of laying of long distance pipelines for the purpose of carrying of drinking water, sewerage, untreated effluent water for Delhi Jal Board as per the provisions of the Finance Act, 1994 and to issue other order or direction as may be deemed fit and proper in the facts and circumstances of the case. 2. We have heard Mr.J.K. Mittal, learned counsel for the petitioner and Mr. Mukesh Anand, learned standing counsel for Central Excise and Custom. 3. It is submitted by Mr. Mittal that the notice to show cause is absolutely vulnerable as the levy is totall ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Thereafter, the petitioner approached this Court by WP(C) No.5471/2010 which was disposed of on 13.8.2010. At this juncture, we think it appropriate to reproduce the relevant part of the said order: Mr. Mukesh Anand, learned standing counsel for Customs and Excise Department submitted that the petitioner has already been issued a letter on 28.05.2010 whereby it has been clarified that the petitioner is required to comply with the points mentioned in the letter dated 20.05.2010. Learned counsel has also drawn our attention to the communication made by the office of the Commissioner of Service Tax on 01.07.2010 whereby it has been stated that if the petitioner fails to comply with the summon without lawful excuse, he shall be liable to be punished under law. Learned counsel for the department submitted that this is a summon issued under Section 14 of the Central Excise Act, 1944. In essence, the submission of Mr. Mukesh Anand is that this is a preliminary proceeding and no coercive steps shall be taken without giving an adequate opportunity of hearing and even if the petitioner is found liable to service tax, the same shall be adjudicated upon where the petitioner shall also be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Indian Oil Corporation and another (2004) 3 SCC 488 : (2004) 3 SCC 488, ITW Signode India Ltd. v. Collector of Central Excise 2003 (158) E.L.T. 403 (SC), Hindustan Poles Corporation v. Commissioner of C. Ex., Calcutta 2006 (196) E.L.T. 400 (SC) and State of Punjab v. Bhatinda District Co-op. Milk P. Union Ltd. 2007 (217) E.L.T. 325 (SC). 7. Mr. Mukesh Anand, learned standing counsel for Central Excise and Customs, resisting the aforesaid contentions put forth by Mr. Mittal, submitted that in the notice to show cause the statutory provisions have been referred to and a prima facie opinion has been formed but that does not necessarily mean the stand and stance put forth by the petitioner has been totally brushed aside. He has drawn our attention to paragraphs 23 and 24 of the Show Cause Notice date 15.10.2010 which read as follows: 23. M/s L.R. Sharma Co., V-17, Green Park Ext., New Delhi-110016, are required to produce at the time of showing cause, all evidence upon which they intend to rely upon in support of their defence. They are also required to indicate in their written reply as to whether they wish to be heard in person before the case is adjudicated failing which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assign any reason as to why such a notice was being issued after a period of 5 years. 23. Question of limitation being a jurisdictional question, the writ petition was maintainable. 24. We are, however, not oblivious of the fact that ordinarily the writ court would not entertain the writ application questioning validity of a notice only, particularly, when the writ petitioner would have an effective remedy under the Act itself. This case, however, poses a different question. The Revisional Authority, being a creature of the statute, while exercising its revisional jurisdiction, would not be able to determine as to what would be the reasonable period for exercising the revisional jurisdiction in terms of Section 21(1) of the Act. The High Court, furthermore in its judgment, has referred to some binding precedents which have been operating in the field. The High Court, therefore, cannot be said to have committed any jurisdictional error in passing the impugned judgment. 11. In Hindustan Poles Corporation (supra), the Apex Court was dealing with an appeal from the show cause notices issued by the Additional Collector of Central Excise, Calcutta I. In the said case, it was ..... X X X X Extracts X X X X X X X X Extracts X X X X
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