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TMI Blog2015 (10) TMI 1305X X X X Extracts X X X X X X X X Extracts X X X X ..... otice, the appellant was asked to provide details/ documents/ information for the period April, 2009 to March 2010 through various letters dated 3.6.2010, 4.7.2010, 28.7.2010, 3.9.2010 and lastly on 1.10.2010. But the appellant did not provide any details to the department. Therefore, it was alleged in the show cause notice that the appellant has failed to furnish the requisite information and also not furnished the returns under section 70 of the Act. Therefore, provisions of section 72 of the Act were attracted on the basis of best judgment assessment and the show cause notice was issued accordingly. The appellant challenged the issuance of show cause notice before the Hon'ble High Court of Delhi and Hon'ble High Court vide order dated 4.1.2011 directed the adjudicating authority to decide the matter with regard to jurisdiction tacit basis taking into consideration the stand and stances putforth by the appellant, whether the show cause notice was issued correctly or not. The adjudicating authority held that show cause notice is maintainable and the same has been confirmed by the learned Commissioner (Appeals). Aggrieved from the said order, the appellant is before us. 2. Shri J ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ity that the returns for relevant period were filed on time. However, the adjudicating authority travelled beyond the allegation made in the show cause notice by alleging that the relevant information required in ST 3 return has been left blank by the appellant referring as per annexure attached. However, there is no such allegation in the show cause notice. However, the returns filed by the appellant were in order. It is settled law that the adjudicating authority cannot travel beyond the allegation made in the show cause notice. He submits that the appellant has periodically filed the service tax returns and the department has not alleged that required information in the return has not be given. Infact, the department has accepted the return filed by the appellant in the manner in which it has been filed for such several years. The learned Commissioner (Appeals) has confirmed the finding of the adjudicating authority by observing that various column of form ST 3 return are blank by referring to annexure and thereafter given a contrary finding that appellant has failed to furnish the return under section 70 of the Act to invoke extended period of limitation. Learned Commissioner ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on of provisions of section 72 of the Act, but the letters issued by the department on various dates for sending information/ details were not issued under section 72 of the Act at all but same were issued under Section 14 of the Central Excise Act for invocating of penal provisions under section 77 of the Act. And these letters does not specify any specific information to be furnished or the information furnished by the appellant in the return are incomplete in any respect. The law does not permit for invocation of section 72 of the Act for non-furnishing of information but in the show cause notice, section 72 was invoked either for non-furnishing of return or furnishing of incomplete report whereas the assessee has failed to assess tax in accordance with the law. Therefore, the adjudicating authority has drawn the wrong conclusion contrary to law and even if there would have been such allegation will not sustain in the show cause notice for invocation of section 72 of the Act for the said reason. 5. He further submits that in the show cause notice, provisions of section 72 and 73 are invoked simultaneously whereas in the show cause notice, it is alleged that provisions of sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e notice was issued in continuation of show cause notice dated 8.4.2010 and the charges and violations mentioned in the show cause notice dated 8.4.2010 shall apply to the impugned show cause notice. He further submits that the show cause notice dated 8.4.2010 was relied upon for issuance of the impugned show cause notice. He further submits that as the appellant has failed to specify the information under various sections of Finance Act, 1994, therefore, show cause notice is maintainable. 7. He also submits that show cause notice is clearly brings out the violation of section 66A, 67, 68, 69, 70 and 72 of Finance Act, 1994 and is in continuation of earlier show cause notice dated 8.4.2010, therefore, show cause notice is maintainable. In these terms, appeal is to be dismissed. 8. Heard the parties. Considered the submissions. 9. In this matter, the issue before us is that whether the show cause notice issued to the appellant is in accordance with the law and same is maintainable or not. 10. As the show cause notice is the issue before us, therefore, it would be in the interest of justice to incorporate the show cause notice herein as under: 11. Now on perusal of the show caus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eunder. 15. Therefore, section 72 ibid has two limbs: A. Fails to furnish the return or B. If return has been filed in that case, he fails to assess the tax in accordance with law. In this case, the allegation against the appellant is that they have not filed their ST 3 return under section 70 of the Act. If that is so, then the provision of section 72(a) are attracted. But it is a fact on record that the appellant has filed their return regularly under section 70 of the Act. Therefore, the foundation of the show cause notice that the appellant has not filed their return is incorrect. If the case of the Revenue is that appellant has not filed the return, the provision of section 72 are attracted. The said allegation against the appellant stand disapproved as the appellant has filed their return regularly. 16. Now, we analyse the clause (b) of section 72. If the appellant has filed the return, and fails to assess the tax in accordance with the provisions of this Chapter or rules made thereunder in the show cause notice, there is no allegation against the appellant that they have filed the return and failed to assess the tax in accordance with the provisions of law. 17. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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