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TMI Blog2014 (12) TMI 629X X X X Extracts X X X X X X X X Extracts X X X X ..... dustrial Estate, Vennaimalai Post, Karur. 3. The case of the Department is that, an audit was conducted to the accounts of M/s.Shobika Impex Private Limited and pursuant to the said audit, the Range Officer, Tiruppur-III Range, Tiruppur, sent a letter to the petitioner, dated 07.03.2013, stating that during the course of audit of accounts of M/s. Shobika Impex Private Limited, it revealed that the petitioner has neither taken out service tax registration nor paid service tax on the services provided by the petitioner, therefore, the petitioner was advised to take service tax registration and follow all the statutory procedures to pay service tax, along with interest, failing which, action will be taken against the petitioner under the Service Tax Law. 4. On receipt of this communication, the petitioner, on 08.03.2013, submitted a detailed representation to the Jurisdictional Officer, who is the competent authority, namely, the Superintendent of Central Excise, Tiruppur Range-III, Tiruppur, wherein it was stated that the petitioner / company is engaged in the construction of residential houses on contract basis to its customers, which are exempted from the payment of service tax, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e copies of the Bills issued to M/s.Shobika Impex Private Limited, on the construction activities done by the petitioner and the bank statements of M/s.Axis Bank for the years 2009-10 and 2012-13 were enclosed along with the representation dated 08.03.2013. 5. The Superintendent of Central Excise, did not give any reply to the said representation. But the petitioner was issued with a show cause notice on 31.07.2013 by the Assistant Commissioner of Central Excise, Service Tax and Customs, Tiruppur Division, Tirupur. In the said show cause notice, in paragraph 2.2, the response of the petitioner, dated 08.03.2013, to the Range Officer's letter dated 07.03.2013, has been mentioned. Nevertheless, there was a proposal made to the petitioner calling upon them to explain as to why a sum of Rs. 3,56,628/- should not be recovered in terms of proviso to Section 73 (1) of the Finance Act, 1994, and as to why interest and late fee should not to be demanded and penalty should not be imposed. 6. The petitioner submitted an interim reply, dated 18.09.2013, stating that they admit the tax liability, which was admitted by them in their letter, dated 08.03.2013. However, since they have propos ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ice Tax Audit Manual 2011, and in particular, paragraphs 3.2.2 and 3.3.1; by relying upon the said provision of Audit Manual, it was stated that finalizing the audit objection, without letting the notice to take a note of it, is against the spirit and guidance given in the Audit Manual and therefore, the audit objection, even assuming to be existing, should be considered as non-existing, on account of non-fulfilling the guidelines laid down in the Audit Manual. 9. Thereupon, after receipt of the reply given by the petitioner, the second respondent passed the order, dated 14.03.2014 rejecting the petitioner's application under the VCES, 2013. In the light of the rejection, the show cause notice, dated 31.07.2013 issued by the Commissioner was taken-up for adjudication and by referring to the petitioner's letters, dated 18.03.2013 and 18.09.2013, wherein the petitioner requested for the show cause notice to be kept in abeyance, the Authority proceeded to consider the matter on merits and accordingly, confirmed the order in the show cause notice, by order, dated 25.04.2014. This order is impugned in Writ Petition No.29929 of 2014. As against the said order, the petitioner pre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... igation in respect of a service tax not levied or not paid or short-levied or short-paid has been initiated by way of- (i) search of premises under Section 82 of the Chapter; or (ii) issuance of summons under section 14 of the Central Excise Act, 1944, as made applicable to the Chapter under Section 83 thereof; or (ii) requiring production of accounts, documents or other evidence under the Chapter or the Rules made thereunder; or (b) an audit has been initiated, and such inquiry, investigation or audit is pending as on the 1st day of March, 2013, then, the designated authority shall, by an order, and for reasons to be recorded in writing, reject such declaration. 13. The application filed under the scheme, which undoubtedly appears to be as that of Samadhan scheme or the Voluntary Disclosure Scheme, the parameters for considering the scheme have been laid down in Clauses (a) and (b) of the scheme, referred to above, which provide for circumstances under which the declaration filed under the VCES 2013 is liable for rejection. The reasons assigned in the impugned order, dated 14.03.2014 is that, an audit has been initiated and therefore, the petitioner's application is reje ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... petitioner could be considered to be ineligible under the scheme, for which the authority should not be solely guided by the Range Officer's communication, dated 07.03.2013, which appears to be an advice or notice and the petitioner has taken the advice well and proceeded in accordance with law. 18. In the light of the above, the impugned order, dated 14.03.2014, calls for interference. Accordingly, Writ Petition No.29929 of 2014 is partly allowed and the impugned order, dated 14.03.2014, is quashed and the matter is remanded to the second respondent for fresh consideration. The second respondent, shall afford an opportunity of personal hearing to the petitioner and after hearing the petitioner, shall pass fresh orders, on merits and in accordance with law, uninfluenced by any of the observations made in the order, dated 14.03.2014 or in the order-in-original, dated 25.04.2014, as expeditiously as possible. Since the matter has been remitted back to the second respondent for consideration, the appeal filed by the petitioner before the first respondent, as against the order-in-original, dated 25.04.2014, shall be kept in abeyance. In the light of the orders passed now, by this ..... X X X X Extracts X X X X X X X X Extracts X X X X
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