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TMI Blog2023 (10) TMI 889X X X X Extracts X X X X X X X X Extracts X X X X ..... 7DSD002 for providing various taxable services under the categories of 'Business Auxiliary Services', 'Man Power or Security Agency Services', 'Rent-a-Cab Operator Services', 'Supply of Tangible Goods Services' and 'Works Contract Services'. 3. The respondent No.4 herein had issued a communication on 18.03.2016 informing the petitioner that the petitioner's unit was scheduled to be audited by the Central Excise & Service Tax Audit Party and the petitioner was requested to submit the various documents for the last 5 years or since the financial year of last audit to the respondent No.4 latest by 05.04.2016. It was further mentioned in the said communication that the petitioner has to keep all the records ready from start of the business for inspection during audit. Pursuant to the said communication, the petitioner on 05.04.2016 submitted the various documents on various dates which would be apparent from a perusal of the documents annexed as Annexure-P-4. It reveals from the said documents that the same related to the period from April, 2012 to March, 2015. It is further seen from the documents enclosed as Annexure-P-4 that the respondent No.4 had made an audit report on 02.02.201 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er Rule 14 of the CENVAT Credit Rules, 2004; non-payment of interest of Rs.10,51,677/- for the period from April, 2015 to March, 2017 should not be demanded and recovered under the point of Taxation Rule, 2011; late fee of Rs. 20,000/- for delay in furnishing the prescribed return in Form ST-3 as provided in Section 70 of the Act of 1994 read with Rule 7C of the Service Tax Rules, 1994 should not be demanded and recovered; interest should not be charged under Section 75 of the Act of 1994 as well as, as to why penalty should not be imposed upon the petitioner under Section 78 of the Act of 1994. 6. It further reveals from the record that the Superintendent of the Central Goods and Service Tax vide communications dated 14.06.2019; 26.06.2019 and 29.07.2019 had fixed various dates for personal hearing of the petitioner and the petitioner was directed to appear before the Joint Commissioner, Central Goods and Service Tax, Dibrugarh on such dates fixed so as to avail the opportunity to be heard either in person or through its authorized representatives with due authorization/vakalatnama in original along with all documentary evidence upon which the petitioner intended to reply in supp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... determine the value of taxable service correctly or has availed and utilized credit of duty or tax paid or has operation spread out in multiple locations and it is not possible or practicable to obtain a true and complete picture of his accounts from the registered premises falling under the jurisdiction of the said Commissioner. The learned counsel for the petitioner submitted that only upon having the reasons to believe of the existence of the circumstances as stipulated in Clauses (i), (ii) & (iii) of Section 72A (1) of the Act of 1994, Principal Commissioner of Central Excise or the Commissioner of Central Excise can direct such person to get his accounts audited by a Chartered Accountant or Cost Accountant nominated by him to the extent or for the period as may be specified by the Commissioner. It is, therefore, the submission of the learned counsel for the petitioner that taking into account vide Section 173 of the Act of 2017, the Act of 1994 stood repealed and only certain things have been saved which have been mentioned in Section 174 of the Act of 2017 on the basis of the said, the learned counsel for the petitioner's submissions were two folds. First, the audit commence ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s audit by Tax Authorities and by Section 66, a special audit may be carried out in the circumstances mentioned therein. It is, therefore, the submission of the learned counsel for the respondents that after coming into effect the Act of 2017, the power to carry out necessary investigation, enquiry and verification including scrutiny and audit have been saved but the manner in which the audit is to be carried out would be in terms with Chapter-XIII of the Act of 2017 in as much as Section 72A of the Act of 1994 was repealed. 13. Upon hearing the learned counsel for the parties, the point which arises for determination is as to whether the Respondent Authorities could have carried out the audit on the basis of the communication dated 17.08.2017 and on the basis thereof issued the impugned demand-cum-show cause notice?. 14. For the purpose of deciding the said point for determination, this Court finds it relevant to take note of some of the provisions of the Act of 1994. Section 70 of the Act of 1994 relates to Furnishing of Returns. It stipulates that every person liable to pay the service tax shall himself assess the tax due on the services provided by him and shall furnish to th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and for the period as may be specified by the Commissioner. In terms with Sub-Section (2) of Section 72A of the Act of 1994, the Chartered Accountant or Cost Accountant shall within the period specified by the Commissioner, submit a report duly signed and certified by him to the said Commissioner mentioning therein such other particulars as may be specified by him. Sub-Section (4) of Section 72A of the Act of 1994 further stipulates that the person liable to pay tax shall be given an opportunity of being heard in respect of any material gathered on the basis of the audit under Sub- Section (1) and proposed to be utilised in any proceeding under the provisions of the Chapter V or the Rules made thereunder. 17. Section 73 of the Act of 1994, empowers the Central Excise Officer to issue a show cause for recovery of service tax not levied/paid or short-levied or short-paid or erroneously refunded by issuance of a notice within thirty months from the relevant date. The proviso to Sub-Section (1) of Section 73 of the Act of 1994 enlarges the period for issuance of notice from thirty months to 5 years where any service tax has not been levied/paid or short-levied or short-paid or erroneo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t, as aforesaid, and any such investigation, inquiry, verification (including scrutiny and audit), assessment proceedings, adjudication and other legal proceedings or recovery of arrears or remedy may be instituted, continued or enforced, and any such tax, surcharge, penalty, fine, interest, forfeiture or punishment may be levied or imposed as if these Acts had not been so amended or repealed." 20. The above quoted portion of Section 174 of the CGST Act, 2017 would reveal that the omission of Chapter V of the Act of 1994 shall not affect any investigation, inquiry, verification (including scrutiny and audit), assessment proceedings, adjudication and any other legal proceedings or recovery of arrears or remedy in respect of any such duty, tax, surcharge, penalty, fine, interest, right, privilege, obligation, liability, forfeiture or punishment as aforesaid, and any such investigation, inquiry, verification (including scrutiny and audit), assessment proceedings, adjudication and other legal proceedings or recovery of arrears or remedy may be instituted, continued or enforced, and any such tax, surcharge, penalty, fine, interest, forfeiture or punishment may be levied or imposed as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urpose of the enactment. For this purpose, where necessary, the Court may even depart from the rule that plain words should be interpreted according to their plain meaning. There need be no meek and mute submission to the plainness of the language. To avoid patent injustice, anomaly or absurdity or to avoid invalidation of a law, the court would be justified in departing from the so-called golden rule of construction so as to give effect to the object and purpose of the enactment. Ascertainment of legislative intent is the basic rule of statutory construction." 22. Now coming into the facts involved in the instant case, it would be seen that for the period from April, 2012 to March, 2015, audit was duly completed. Subsequent thereto, on 17.08.2017, there was initiation of audit for the period from April, 2015 to 30.06.2017. It further reveals that the petitioner duly participated in the said audit as would be apparent from the Annexure-P-5 that too without any objection or challenge. It is only after the audit was carried out and the impugned demand-cum-show cause notice was issued on 07.05.2019 that the petitioner had assailed the Respondent Authority's power to carry out the au ..... X X X X Extracts X X X X X X X X Extracts X X X X
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