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TMI Blog2015 (4) TMI 289X X X X Extracts X X X X X X X X Extracts X X X X ..... r relevant facts which were necessary to be disclosed and whether the non-disclosure thereof constituted suppression. It is obviously for this reason that the petitioner rightly did not challenge the show cause notice itself at the outset. The petitioner rightly answered the show cause notice by filing a detailed reply therein. Even on merits, the petitioner thereafter appeared before the Commissioner and made detailed submissions. The petitioner filed detailed written submissions in this regard as well. - no reason to interfere at this stage in exercise of our extra-ordinary jurisdiction when the issue can be raised before the appellate Tribunal. It would be appropriate for the petitioner to challenge the order by filing an appeal before the Tribunal. - Decided against assessee. - Civil Writ Petition No. 4408 of 2015 (O&M) - - - Dated:- 13-3-2015 - S. J. Vazifdar, Acting Chief Justice And G. S. Sandhawalia,JJ. For the Petitioner : Mr. Bishwajit Bhattacharyya, Senior Advocate with Mr. Sushil Verma and Mr. Lakhindar Bir Singh, JUDGMENT S.J. Vazifdar, Acting Chief Justice: The petitioner has challenged a show cause notice dated 20.7.2012 (Annexure P-10) and an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hich was not a taxable service within the meaning of that expression in Section 65(105)(zzzza). 6. The petitioner, on the other hand, in the course of the correspondence contended that it was entitled to the credits. The petitioner was requested to provide copies of its ST-3 Returns for the period October, 2009 to March, 2010, April, 2010 to September, 2010 and October 2010 to March, 2011 and details of capital goods and inputs on which CENVAT credit had been availed. It was also requested to clarify as to how capital goods and inputs, on which it had availed CENVAT credit, were covered under the relevant CENVAT credit rules. The petitioner was also requested to submit input invoices/agreements with suppliers of goods on which CENVAT credit had been availed by it. 7. It is pertinent to note that the petitioner, in the course of the correspondence, stated that while finalizing the revised ST-3 Returns for the period October, 2009 to March, 2010, there was an inadvertent error on its part in not mentioning that it had claimed CENVAT credit in respect of capital goods to the tune of ₹ 18.27 crores. It contended that the error was inadvertently shown under the category of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s part or not. The petitioner also contended that there was no jurisdiction to issue the show cause notice as it was issued beyond the period prescribed under Section 73 of the Finance Act. 10. The only point argued before us is that the show cause notice was issued beyond the time prescribed in Section 73(1) and that the proviso thereto was inapplicable to the case. Section 73 of the Finance Act reads as under:- 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 eighteen months 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 shortlevied 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 erroneously refunded by reason of - (a) fraud; or (b) collusion; or (c) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inadmissible CENVAT credit. The Commissioner furnished detailed reasons for coming to the conclusion that CENVAT credit availed by the petitioner was inadmissible including in respect of the inputs, input services, etc. The impugned order also dealt with the contention in the reply to the show cause notice that the show cause notice was time-barred and that the provisions of Section 73(1) were inapplicable in the facts and circumstances of the case to extend the period of limitation. The Commissioner held, relying upon legal dictionaries, that where there is an obligation to speak, a failure to speak will constitute suppression of fact. He held that the petitioner had an obligation to comply with the statutory provisions and to furnish the information/documents as required. He observed that the case had arisen out of the audit conducted by the officers of the Service Tax Commissionerate, New Delhi and that the petitioner had consciously availed of the huge amount of inadmissible CENVAT credit and suppressed the same with an intent to evade payment of duty. He observed that had the department not conducted the audit, the inadmissible availment of CENVAT credit would not have been u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ue as to whether the relevant material was suppressed or not is not a pure question of law. By the impugned order, the Commissioner has held that the petitioner has suppressed material with an intent to evade payment of duty. The petitioner contends that the fact of having availed of CENVAT duty was disclosed in the returns. It is necessary, however, to see whether the extent of disclosure in the returns was sufficient compliance. It would be necessary to ascertain whether the extent of disclosure would have enabled the assessing authority to determine whether in law the petitioner was entitled to CENVAT credit or not. There are various issues of fact which would be required to be considered. Even assuming that there was a disclosure of the fact of the petitioner having availed the credit, it would be necessary to ascertain whether there were other relevant facts which were necessary to be disclosed and whether the non-disclosure thereof constituted suppression. It is obviously for this reason that the petitioner rightly did not challenge the show cause notice itself at the outset. The petitioner rightly answered the show cause notice by filing a detailed reply therein. Even on mer ..... X X X X Extracts X X X X X X X X Extracts X X X X
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