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TMI Blog2012 (12) TMI 423X X X X Extracts X X X X X X X X Extracts X X X X ..... . The impugned notice was issued on the allegation that the petitioner had not paid service tax on the amount collected as premium during the years 2007-2008, 2008-2009, 2009-2010 and 2010-2011. The impugned notice has been challenged on the ground of the same being barred by limitation, and therefore, without jurisdiction. Section 73 of the Finance Act, 1994 provides as follows: "73. Recovery of service tax not levied or paid or short-levied or short-paid or erroneously refunded (1) Where any service tax has not been levied or paid or has been short-levied or short-paid or erroneously refunded, the Central Excise Officer may, within one year from the relevant date, serve notice on the person chargeable with the service tax which has not been levied or paid or which has been short-levied or short-paid or the person to whom such tax refund has erroneously been made, requiring him to show cause why he should not pay the amount specified in the notice: PROVIDED that where any service tax has not been levied or paid or has been short-levied or short-paid or erroneously refunded by reason of - (a) fraud; ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ared that the interest under section 75 shall be payable on the amount paid by the person under this sub-section and also on the amount of short payment of service tax or erroneously refunded service tax, if any, as may be determined by the [Central Excise Officer] but for this sub-section. [Explanation 2]: For the removal of doubts, it is hereby declared that no penalty under any of the provisions of this Act or the rules made thereunder shall be imposed in respect of payment of service tax under this sub-section and interest thereon.] (4) Nothing contained in sub-section (3) shall apply to a case where any service tax has not been levied or paid or has been short-levied or short-paid or erroneously refunded by reason of- (a) fraud; or (b) collusion; or (c) wilful mis-statement; or (d) suppression of facts; or (e) contravention of any of the provisions of this Chapter or of the rules made thereunder with intent to evade payment of service tax. [(4A) Notwithstanding anything contained in sub-sections (3) and (4), where durin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... here no periodical return as aforesaid is filed, the last date on which such return is to be filed under the said rules; (c) in any other case, the date on which the service tax is to be paid under this Chapter or the rules made thereunder; (ii) in a case where the service tax is provisionally assessed under this Chapter or the rules made thereunder, the date of adjustment of the service tax after the final assessment thereof; (iii) in a case where any sum, relating to service tax, has erroneously been refunded, the date of such refund.] On a perusal of the said Section it is amply clear that any tax not levied or paid, short levied or short paid might be recovered from the petitioner. The show cause notice for realisation of tax not levied or paid or short levied or short paid could be issued within one year from the relevant date. After amendment with effect from 28 th May, 2012 by the Finance Act, 2012, the period of limitation is 18 months instead of one year. However, in view of the Proviso, where service tax has not been levied or paid or has been short levied or short paid or erroneously refunded by reason of fraud ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erty". It is alleged that the assessee had thus failed to comply with the requirements of the statutory provisions of the Finance Act, 1994 and the rules made thereunder and had wilfully suppressed facts related to providing/receiving of the said service with intent to evade payment of service tax. The show-cause notice has apparently been issued pursuant to the observations made by CERA Audit Team of the Office of the Comptroller and Auditor General of India who had visited the premises of the petitioner. In paragraph 9 there is a sweeping statement that if the Audit Team had not visited the premises of the said assessee and unearthed material facts, the assessee would have been continuing the evasion. Therefore, proviso to Section 73(1) is invocable for extending time. It prima facie appears to this Court that the reasons for invoking the extended period of limitation, as disclosed, are totally vague and devoid of material particulars. Prima facie, there is no whisper in the impugned notice of the facts which have allegedly been suppressed. Prima facie, the vague assertion that the petitioner had wilfully suppressed facts pertaining to providing/receiving the services with int ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ously been made, requiring him to show cause why he should not pay the amount specified in the notice: Provided that where any duty of excise has not been levied or paid or has been short-levied or short-paid or erroneously refunded by reason of fraud, collusion or any wilful mis-statement or suppression of facts, or contravention of any of the provisions of this Act or of the rules made thereunder with intent to evade payment of duty, by such person or his agent, the provisions of this sub-section shall have effect, [as if, [***]] for the words [one year], the words "five years" were substituted: [ * * * * * ] Explanation.- Where the service of the notice is stayed by an order of a court, the period of such stay shall be excluded in computing the aforesaid period of [one year] or five years, as the case may be." In Commissioner of Central Excise, Aurangabad Vs. Bajaj Auto Ltd. 2010-TIOL-94-SC-CX cited by Mr. J.K. Mittal, learned Counsel appearing on behalf of the petitioner, the Supreme Court followed its earlier judgment in Anand Nishikawa Co. Ltd. Vs. Commissioner of Central Excise, Meerut (2005) 7 SCC 749 and held tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d assumed jurisdiction by deciding a jurisdictional fact erroneously, the assessee would be entitled to a writ of certiorari as prayed for, since it was incomprehensible to think a quasi-judicial authority could erroneously decide a jurisdictional fact and impose a levy. In Shrisht Dhawan Vs. Shaw Brother reported in (1992) 1 SCC 534 the Supreme Court followed its earlier judgment in M/s Raza Textiles Ltd. and reiterated the proposition that a Court or Tribunal cannot confer jurisdiction to itself by deciding a jurisdictional fact wrongly. In Calcutta Discount Company Ltd. Vs. Income Tax Officer, Companies District I, Calcutta & Anr. reported in AIR 1961 SC 372, a Constitution Bench of the Supreme Court held that where the action of an executive authority acting without jurisdiction subjects or is likely to subject a person to lengthy proceedings and unnecessary harassment, the High Courts, it is well settled, would issue appropriate orders or directions to prevent the same. In Calcutta Discount Company Ltd. (supra) the Constitution Bench of the Supreme Court held the expression "reason to believe" postulates belief and the existence of reasons for that belief. The belief must b ..... X X X X Extracts X X X X X X X X Extracts X X X X
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