9911796707
TMI Blog2024 (6) TMI 1035X X X X Extracts X X X X X X X X Extracts X X X X ..... m is sought to be taxed under Heading 9997 i.e. other services (Textile, Washing, Cleaning, Dying) and Heading 99671 i.e. Cargo Handling Service (Container handling service, Customs House Agent Service, Other Cargo and Baggage Handling Service, Cleaning and Forwarding Services). After going through the show-cause and the factual aspects, which are undisputed; it prima facie appears that the Petitioner has been able to establish a prima facie case of abuse of process of law and lack of jurisdiction. Extended period of Limitation - HELD THAT:- The impugned show cause notice has been issued under Section 74 of the Act. This Court in the case of Central Coalfields Ltd. Vs. UOI [ 2024 (1) TMI 1158 - JHARKHAND HIGH COURT] following judgment of the Hon ble Supreme Court in the case of International Merchandising Co. Vs. CST [ 2022 (12) TMI 556 - SUPREME COURT] , has held that where case involves interpretation issue, extended period of limitation is not invokable. The judgment of the Hon ble Delhi High Court in the case of National Building Construction Company Vs. UOI [ 2020 (12) TMI 619 - DELHI HIGH COURT] is under the old Service Tax regime where power was vested in every Central Excis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ved: The High Court, has, by the impugned judgment held that the appellant should first raise all the objections before the Authority who have issued the show-cause notice and in case any adverse order is passed against the appellant, then liberty has been granted to approach the High Court in our view, the High Court was absolutely right in dismissing the writ petition against a mere show-cause notice. 3. He further submits that the question of proper officer raised by the petitioner in the instant application has been dealt with in the case of Yasho Industries Limited Versus Union of India reported in 2021 SCC Online Guj 3131; wherein at para 13 the Hon ble Apex Court has held as under: 13. From the bare reading of section 70 of the CGST Act, it clearly emerges that the proper officer has the power to summon any person whose attendance he considers necessary either to give evidence or to produce the documents in any inquiry in the same manner in the case of a civil court under the CPC. Now, as per the definition of proper officer as contained in section 2(91), a proper officer in relation to any function to be performed under the CGST Act means the Commissioner or the officer of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Such an extended period of limitation can be invoked only if a positive act of fraud etc. on the part of the assessee is found. Such a positive act must be in contradistinction to mere inaction like non-taking of licence etc. It has to be pleaded and established. (See Padmini Products, P B Pharmaceuticals Ltd. and Pushpam Pharmaceuticals Co. By relying upon the aforesaid judgments, learned counsel for the revenue contended that since it is the very initial stage of show-cause, the petitioner-company should be relegated to the assessing officer. Had there been a case that assessment order would have been passed; then of course the case could have been entertained subject to the principle on maintainability. He reiterated that the instant application may be dismissed at this stage as the same is not maintainable on the ground of alternative remedy. 5. Mr. K. Kurmy, learned counsel representing the petitioner-company in all these writ applications contended that the impugned show cause notice is completely without jurisdiction and is an abuse process of law. It is true that normally writ court should not interfere at the stage of issuance of show-cause; however, it is also a settled p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... out exceptions. Where a show cause notice is issued either without jurisdiction or in an abuse of the process of law, certainly or in that case, the writ court should not hesitate to interfere even at the stage of show cause notice. It should be prima facie established that the show cause notice is without jurisdiction and in an abuse of the process of law. 8. In the instant case, a composite supply principally for transportation of Power Plant Ash up to distance of 50 km is sought to be taxed under Heading 9997 i.e. other services (Textile, Washing, Cleaning, Dying) and Heading 99671 i.e. Cargo Handling Service (Container handling service, Customs House Agent Service, Other Cargo and Baggage Handling Service, Cleaning and Forwarding Services). After going through the show-cause and the factual aspects, which are undisputed; it prima facie appears that the Petitioner has been able to establish a prima facie case of abuse of process of law and lack of jurisdiction. The three judge larger bench of the Hon ble Apex Court in the case of Magadh Sugar Energy Ltd. Vs. State of Bihar reported in (2021) SCC Online SC 801 (Vol-I Page 69) under Para 26 has held that if the taxing authorities ..... X X X X Extracts X X X X X X X X Extracts X X X X
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