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TMI Blog2021 (3) TMI 85X X X X Extracts X X X X X X X X Extracts X X X X ..... nformation not been received by the department and investigation initiated, the case could not have come to light. As such, it appeared that it is a case of wilful suppression of material facts from the department. Para-21 of the SCN indicates that the Managing Director of the assessee and noticee no.2 was also asked to explain as to why he be not held liable for penalty under Section 78A of the Finance Act, 1994 for his complicity in the aforesaid evasion of service tax since he had not given satisfactory answers to the queries made - Proceedings for adjudication in such matters are initiated by the office of the Commissioner of GST and Central Service tax as has been informed by the learned counsel for the respondents, though notices are issued to the assessees by the preventive branch upon third party information and investigation asking them to explain the discrepancy in the taxable value received by them for the relevant period upon comparison of other materials available with the department. In this case, the investigation was initiated upon inputs received from the Income Tax Department regarding discrepancy in the taxable value received by the petitioner as per TDS and inco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Learned counsel has relied upon the decision of the Delhi High Court in the case of Amadeus India Pvt. Ltd. Vrs. Principal Commissioner, Central Excise, Service Tax and Central Tax Commissionerate, reported in 2019 SCC Online Del 8437 (Annexure-S.A.-2 to the supplementary affidavit). He submits that since the show-cause notice has been issued on 21.11.2017 for alleged suppression and evasion of service tax for the period 2012-13 to 2015-16, it cannot come under the exception of preventive show- cause notice as was also discussed in the case of Amadeus India Pvt. Ltd. by the Delhi High Court at paragraph-13. The Hon'ble Delhi High Court also observed that at the end of the adjudication process, the petitioner may have to face consequences for having committed an offence under the Finance Act, 1994 need not per se render the SCN itself as an offence related SCN. If that were to be the logic, then in every case para 5.0 can be dispensed with on the ground that the adjudication of the SCN is likely to lead to the noticee facing proceedings for having committed an offence. The exception would then become the rule and not vice-versa, and the need for any pre-notice consultation being ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... im opportunity to respond. Had the information relating to wilful suppression of material facts from the Department not come to light on 3rd party information received by the department and investigation initiated thereupon, petitioner would have been successful in evading payment of tax. Since such misstatement and suppression of facts came to the knowledge of the department, therefore, the extended period for issuing SCN is as per law. The decision cited by the petitioner is not applicable in the instant case. Had such a preventive exercise not been undertaken on 3rd party information, petitioner would have been successful in evading the tax liability. As such, petitioner's case falls within the exceptions to para 5.0 of the master circular dated 10th March 2017. It is submitted that since the adjudication proceeding has been completed, petitioner has liberty to approach the appellate forum if he is aggrieved thereby. Learned counsel for the respondents has relied upon a decision rendered in the case of State of U.P. Ors. Vs. S.K. Theatre Productions Ors. reported in (2007) 10 SCC 198 in support of his submission that when there is some ambiguity in a circular, the circul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to submit those documents. It was again requested to submit the reply/document vide letter dated 13th August 2014. Keeping in view the poor response of the assesse, summons were issued to the assessee under Section 14 of the Central Excise Act, 1944 on several dates as under : (i) C. No. V(8) 30/S.Tax/HIMANCHAL/Misc./JSR/2014/13190 dated 20.09.2015 summoning the assesse on 28.09.2015, (ii) C. No. V(8) 30/S.Tax/HIMANCHAL/Misc./JSR/2014/16158 dated 23.11.2015 summoning the assesse on 01.12.2015, (iii) C. No. V(8) 30/S.Tax/HIMANCHAL/Misc./JSR/2014/1928 dated 25.02.2016 summoning the assesse on 04.03.2016, (iv) C. No. V(8) 30/S.Tax/HIMANCHAL/Misc./JSR/2014/3447 dated 05.04.2016 summoning the assesse on 05.04.2016 and (v) C. No. V(8) 30/S.Tax/HIMANCHAL/Misc./JSR/2014/3922 dated 18.04.2016 summoning the assesse on 18.04.2016. 11. The SCN also indicates that had the third party information not been received by the department and investigation initiated, the case could not have come to light. As such, it appeared that it is a case of wilful suppression of material facts from the department. Para-21 of the SCN indicates that the Managing Director of the asse ..... X X X X Extracts X X X X X X X X Extracts X X X X
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