9911796707
TMI Blog2019 (8) TMI 396X X X X Extracts X X X X X X X X Extracts X X X X ..... enquiry etc., that was/to be instituted under Chapter V of the Finance Act of 1994. A conjoint reading of Section 173 and 174(2)(e) would show that while bringing an omission to the provision of Chapter V of the Finance Act of 1994, a savings clause for continuing with the proceedings initiated/to be initiated was also duly provided. If a statute stood omitted with a savings clause, the savings clause would not render it impermissible for the proceedings initiated/to be initiated under Chapter V of the Finance Act of 1994, which stood omitted by Section 173 of the CGST Act of 2017 to be continued. This Court is of the considered opinion that no case for interference is made out in the matter specially when, the show-cause notice has been issued - petition dismissed. X X X X Extracts X X X X X X X X Extracts X X X X ..... he Central Government has introduced GST w.e.f. 01.07.2017 under Section 174 of the Central Goods and Services Tax Act, 2017 and all powers under the Finance Act, 1994 have been repealed by the legislature, and therefore, the respondents have no authority to demand document for the purpose of audit from any assessee under the provisions of Finance Act, 1994. The notice / letter demanding requisite document for audit purpose Per se is against the authority, and therefore, bad in law. 09. It has been also stated that Section 173 of the Central Goods and Service Tax Act, 2017 has omitted the provisions of Finance Act, 1994 and as no saving to Rule 5A(2) of the Service Tax Rule, 1994 is provided in the provisions of Section 174 (2) of the Central Goods and Service Tax Act, 2017, fresh audit proceedings initiated by the respondents is bad in law. 10. It has been further stated that after introduction of Central Goods and Service Tax Act, 2017, the notice / letter issued under the provisions of Finance Act, 1994 is ab initio void and bad in law. 11. It has been stated that the audit is specialized function for which the legislation has specified provisions under Section 72A and the sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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, Central Excise Officer may, within thirty 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 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 shortpaid 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, by the person chargeable with the service tax or his agent, the provisions of this sub-section shall have effect, as if, for the words "thirty months", the words "five years" had been substituted. Explanation.-Where the service of the notice is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r has been short-levied or short-paid or erroneously refunded, the person chargeable with the service tax, or the person to whom such tax refund has erroneously been made, may pay the amount of such service tax, chargeable or erroneously refunded, on the basis of his own ascertainment thereof, or on the basis of tax ascertained by a Central Excise Officer before service of notice on him under sub-section (1) in respect of such service tax, and inform the [Central Excise Officer] of such payment in writing, who, on receipt of such information shall not serve any notice under sub-section (1) in respect of the amount so paid : Provided that the Central Excise Officer may determine the amount of short-payment of service tax or erroneously refunded service tax, if any, which in his opinion has not been paid by such person and, then, the Central Excise Officer shall proceed to recover such amount in the manner specified in this section, and the period of "thirty months" referred to in subsection (1) shall be counted from the date of receipt of such information of payment. Explanation.1- For the removal of doubts, it is hereby declared that the interest under section 75 shall be payab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (iii) in a case where any sum, relating to service tax, has erroneously been refunded, the date of such refund.] SECTION 73A. Service tax collected from any person to be deposited with Central Government.- (1) Any person who is liable to pay service tax under the provisions of this Chapter or the rules made thereunder, and has collected any amount in excess of the service tax assessed or determined and paid on any taxable service under the provisions of this Chapter or the rules made thereunder from the recipient of taxable service in any manner as representing service tax, shall forthwith pay the amount so collected to the credit of the Central Government. (2) Where any person who has collected any amount, which is not required to be collected, from any other person, in any manner as representing service tax, such person shall forthwith pay the amount so collected to the credit of the Central Government. (3) Where any amount is required to be paid to the credit of the Central Government under subsection (1) or sub-section (2) and the same has not been so paid, the Central Excise Officer shall serve, on the person liable to pay such amount, a notice requiring him to show ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unt payable is voluntarily paid in full, without reserving any right to appeal against such payment at any subsequent stage, within forty-five days from the date of issue of such order, instruction or direction, as the case may be, no interest shall be payable and in other cases, the interest shall be payable on the whole amount, including the amount already paid. Provided further that in the case of a service provider, whose value of taxable services provided in a financial year does not exceed sixty lakh rupees during any of the financial years covered by the notice issued under sub-section (3) of section 73A or during the last preceding financial year, as the case may be, such rate of interest shall be reduced by three per cent. per annum. Explanation 1. - Where the amount determined under sub-section (4) of section 73A is reduced by the Commissioner (Appeals), the Appellate Tribunal or, as the case may be, the court, the interest payable thereon under this section shall be on such reduced amount. Explanation 2. - Where the amount determined under sub-section (4) of section 73A is increased by the Commissioner (Appeals), the Appellate Tribunal or, as the case may be, the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t after conducting an audit, audit report was sent to the petitioner on 06.03.2019. The principles of natural justice and fair play were also observed and after furnishing the final audit report, showcause notice has been issued, and therefore, the present petition is certainly premature. 20. The respondents have stated that the petitioner is required to file a reply to the show-cause notice and no case for interference is made out in the matter. The respondent have also stated that as many as eight audit memos were issued to the petitioner requesting him to deposit the tax and the petitioner, in response to the audit memo, vide letter letter dated 27.12.2018 has deposited the service tax along with the interest and penalty pertaining to Audit Memo No.1 and 5. In respect of other audit memos, the petitioner has stated before the authority that they are going to challenge the audit before the High Court. 21. The respondents have stated that at this stage, as the show-cause notice has been issued, the question of interference does not arise. 22. Learned counsel for the petitioner has placed reliance upon a judgment delivered in the case of Mega Cabs Private Limited v/s Union of I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... authority issuing the very notice initially, before the aggrieved could approach the Court. Further, when the Court passes an interim order it should be careful to see that the statutory functionaries specially and specifically constituted for the purpose are not denuded of powers and authority to initially decide the matter and ensure that ultimate relief which may or may not be finally granted in the writ petition is accorded to the writ petitioner even at the threshold by the interim protection, granted. 6. In the instant case, the High Court has not indicated any reason while giving interim protection. Though, while passing interim orders, it is not necessary to elaborately deal with the merits, it is certainly desirable and proper for the High Court to indicate the reasons which has weighed with it in granting such an extra ordinary relief in the form of an interim protection. This admittedly has not been done in the case at hand. In the light of the aforesaid judgment, this Court is of the considered opinion that all the grounds raised by the petitioner in the present Writ Petition can certainly be looked into by the Authority which has issued the Show Cause Notice ie., ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tablished. It is well settled that a writ lies when some right of any party is infringed. A mere show-cause notice or charge-sheet does not infringe the right of any one. It is only when a final order imposing some punishment or otherwise adversely affecting a party is passed, that the said party can be said to have any grievance. 15. Writ jurisdiction is discretionary jurisdiction and hence such discretion under Article 226 should not ordinarily be exercised by quashing a show-cause notice or charge sheet. 16. No doubt, in some very rare and exceptional cases the High Court can quash a charge-sheet or show-cause notice if it is found to be wholly without jurisdiction or for some other reason if it is wholly illegal. However, ordinarily the High Court should not interfere in such a matter. In the present case, the Show Cause Notice can never be said to be a Show Cause Notice issued by an Authority without jurisdiction. It is a mere Show Cause Notice and the petitioner show cause before the authorities by filing a proper reply and, therefore, in the light of the aforesaid judgment, the question of interference by this Court, inspite of the fact that a complete mechanism is p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arty is passed, that the said party can be said to have any grievance. 15. Writ jurisdiction is discretionary jurisdiction and hence such discretion under Article 226 should not ordinarily be exercised by quashing a showcause notice or charge-sheet." In light of the aforesaid judgment, the question of entertaining the present writ petition at the stage of issuance of show cause notice does not arise. The admission is declined. Certified copy as per rules. This Court in similar circumstances has declined to interfere in the matter, as it was certainly against the Show Cause Notice. This Court is of the considered opinion that the present Writ Petition is certainly a premature Writ Petition. Petitioner does have a remedy to file a reply to the Show Cause Notice. He does have a remedy to raise all possible grounds before the Addl. Director General, Directorate General of Central Intelligence and, therefore, the admission is declined. The petitioner is granted 30 days time to file an appropriate reply to the Show Cause Notice and the authority issuing the Show Cause Notice shall proceed ahead in the matter strictly in accordance with law. With the aforesaid, the present W ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... "28. In other words, the proposition laid down in paragraph 37 of Kolhapur Canesugar Works Ltd. (supra) is that the continuance of a further proceeding under an omitted Act depends upon as to whether a savings clause is provided in the enactment by which the earlier enactment was omitted. In the instant case, it is taken note of that the provisions of Chapter V of the Finance Act of 1994 were omitted by Section 173 of the CGST Act of 2017, where Section 173 is under the heading of 'Amendment of Act 32 of 1994'. Section 174 of the said Act which is under the heading of 'Repeal and Saving' in Sub-Section 1 provides that save and otherwise provided in the Act, on and from the date of commencement, the portion of the Central Act of 1994, the Medicinal and Toilet Preparation (Excise Duties) Act 1955, the Additional Duties of Excise (Goods of Special Importance) Act 1957, the Additional Duties of Excise (Textiles and Textile Articles) Act and the Central Excise Tariff Act, 1985 stood repealed. 29. But Section 174(2) of the CGST Act of 2017 provides that the repeal of the said Acts and the amendment of the Finance Act of 1994 (Act 32 of 1994) to the extent mentioned in Section 174( ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
