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TMI Blog2022 (3) TMI 1615X X X X Extracts X X X X X X X X Extracts X X X X ..... present writ petition, the Petitioner has challenged Demand-cum-Show Cause Notice whereby the Adjudicating Authority has asked the assessee to produce evidence which may be relevant to rely in support of its defense. The said Authority also in order to afford opportunity called for explanation/objection and has disclosed proposed actions by specifying components of tax, interest and penalty. Such a Show Cause Notice having clearly spelt out reasons, no prejudice possibly be caused to the Petitioner in the event it is relegated to avail such opportunity by placing relevant material fact including its stance of limitation and the period and transactions covered under the SVLDRS, 2019. At this stage where Demand-cum-show cause notice has been issued to the Petitioner-Nagen Caterer, various aspects are found mentioned in the impugned Show Cause Notice as to why the Adjudicating Authority has sought to invoke the extended period of limitation in terms of proviso to sub-section (1) of Section 73 of the Finance Act which essentially relates to the facts and circumstances of the case. Of course, the Petitioner has the fullest opportunity to counter the same during the course of proceeding. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... service tax. The Adjudicating Authority proposed to proceed with determination of tax, interest and penalty for the periods 2015-16 and 2016-17 and therefore, he issued Demand-cum-Show Cause Notice dated 22.04.2021 calling upon the Petitioner to produce evidence to rebut the following:- *** *** *** *** *** 6.0 Now, therefore the noticee, i.e. M/s. Nagen Caterer, at Samanta Sahi, P.O.: Buxibazar, Cuttack- 753001, bearing Service Tax Registration No. AAAAN1310KSD002 is called upon to Show Cause to the Additional Commissioner, CGST CX, Bhubaneswar Commissionerate, C.R. Buildings, Rajaswa Vihar, Bhubaneswar 751 007 with in 30 (thirty days) of receipt of this notice as to why i) Service Tax including S.B. Cess K.K. Cess amounting to Rs.1,72,28,439/- (Rupees One crore Seventy- two lakh Twenty-eight thousand Four hundred and Thirty- nine) only should not be recovered from them under Section 73(1) of the Finance Act, 1994. ii) Interest as applicable should not be recovered from them under Section 75 of the Act on the above demanded amount. iii) Penalty should not be imposed on them under Section 76 of the Act for non-payment of Service Tax in contravention of Section 68(1) of the Act read ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere is no explanation why the Designated Committee issued SVLDRS-2 and SVLDRS-2A without issuing SVLDRS-3. It is also not in dispute that the pre- deposit amount indicated therein is Rs.33,86,126/- whereas it should be Rs.39,41,880/- as indicated by NC in SVLDRS-1. The only defence put forth is that this was accepted by NC. This is incorrect since NC did write to the authorities on 29th June 2020 which fact is not disputed by the Opposite Parties in the counter affidavit. 18. Consequently, both the writ petitions are disposed of by issuing the following directions: (i) *** *** *** *** (ii) As far as W.P.(C) No.24377 of 2020 is concerned, the Designated Committee (Opposite Party No.2) will issue to NC by 3rd May 2021 the corrected SVLDRS-3 showing the corrected pre-deposit figure as Rs.39,41,880/-. Since NC has already paid the admitted tax liability as indicated therein, the Opposite Parties will also issue in favour of NC by the same date the SVLDRS-4. The SVLDRS-2 and SVLDRS-2A already issued stands quashed. It will be open to NC to seek disposal of the pending appeal thereafter in accordance with law. 6. Sri Choudhury Satyajit Mishra, Senior Standing Counsel for the Revenue poin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce Act for the purpose of levy and collection of service tax and shall be construed as references to the provisions of Section 66B of the Finance Act. Section 66B creates a charge of service tax on or after the Finance Act, 2012. 9. Section 73 of the Finance Act as amended with effect from 14th May, 2016 reads as under: 73. Recovery 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, with in 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 short-paid 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 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l Excise Officer shall determine the service tax payable by such person for the period of thirty months, as if the notice was issued for the offences for which limitation of thirty months applies under sub-section (1). (3) Where any service tax has not been levied or paid or 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is Chapter or the rules made thereunder; (ii) in a case where the service tax is provisionally assessed under this Chapter or the rules made thereunder, the date of adjustment of the service tax after the final assessment there of; (iii) in a case where any sum, relating to service tax, has erroneously been refunded, the date of such refund. It is apparent from the bare reading of aforesaid provisions contained in Section 73 (1) that the competent authority may within thirty months from the relevant date serve a notice on the assessee where service tax has not been levied or paid or short levied or short paid or is erroneously refunded. The expression relevant date has been defined in sub-section (6) of Section 73. By virtue of sub-section (3), the assessee is given scope to voluntarily disclose on its own assessment or on the basis of ascertainment of tax by the Officer before issue of show cause notice under sub-section (1) of section 73 of the Finance Act. If such payment is made, notice under Sub-Section (1) is not warranted in respect of the amount paid. This payment is required to be made voluntarily. Nonetheless, if the Officer is of the view that the amount is not paid, he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce by the Adjudicating Authority, response by the person served with the show cause notice and final determination by the order in original. Issue of show cause notice is a condition precedent to raising an enforceable demand. Reference may be had to Commissioner of Central Excise, Vishakhapatnam Vrs. Mehta Co., (2011) 4 SCC 435; Union of India Vrs. Madhumilan Syntex Pvt. Ltd., (1988) 3 SCC 348; Golak Patel Volkart Limited Vrs. Collector of Central Excise, Belgaum (1987) 2 SCC 93. 11. In the present writ petition, the Petitioner has challenged Demand-cum-Show Cause Notice whereby the Adjudicating Authority has asked the assessee to produce evidence which may be relevant to rely in support of its defense. The said Authority also in order to afford opportunity called for explanation/objection and has disclosed proposed actions by specifying components of tax, interest and penalty. Such a Show Cause Notice having clearly spelt out reasons, no prejudice possibly be caused to the Petitioner in the event it is relegated to avail such opportunity by placing relevant material fact including its stance of limitation and the period and transactions covered under the SVLDRS, 2019. This Court, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... elf-imposed restriction for entertainment of writ jurisdiction has been succinctly enunciated by the Hon ble Supreme Court in Star Paper Mills Ltd. Vrs. State of U.P., (2006) 10 SCC 201 : 2006 SCC OnLine SC 979 which is to the following effect: 4. In response, learned counsel for the respondents submitted that on factual adjudication it was to be established by the appellant that its case is covered by the ratio of this Court s decision in Krishi Utpadan Mandi Samiti case [1995 Supp (3) SCC 433]. 10. The issues relating to entertaining writ petitions when alternative remedy is available, were examined by this Court in several cases and recently in State of H.P. v. Gujarat Ambuja Cement Ltd. [(2005) 6 SCC 499]. 11. Except for a period when Article 226 was amended by the Constitution (Forty-second Amendment) Act, 1976, the power relating to alternative remedy has been considered to be a rule of self-imposed limitation. It is essentially a rule of policy, convenience and discretion and never a rule of law. Despite the existence of an alternative remedy it is within the jurisdiction or discretion of the High Court to grant relief under Article 226 of the Constitution. At the same time, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3 : AIR 2000 SC 2573] , A. Venkatasubbiah Naidu v. S. Chellappan [(2000) 7 SCC 695] , L.L. Sudhakar Reddy v. State of A.P. [(2001) 6 SCC 634] , Shri Sant Sadguru Janardan Swami (Moingiri Maharaj) Sahakari Dugdha Utpadak Sanstha v. State of Maharashtra [(2001) 8 SCC 509] , Pratap Singh v. State of Haryana [(2002) 7 SCC 484 : 2002 SCC (L S) 1075] and GKN Driveshafts (India) Ltd. v. ITO [(2003) 1 SCC 72] 14. In Harbanslal Sahnia v. Indian Oil Corpn. Ltd. [(2003) 2 SCC 107] this Court held that the rule of exclusion of writ jurisdiction by availability of alternative remedy is a rule of discretion and not one of compulsion and the court must consider the pros and cons of the case and then may interfere if it comes to the conclusion that the Petitioner seeks enforcement of any of the fundamental rights; where there is failure of principles of natural justice or where the orders or proceedings are wholly without jurisdiction or the vires of an Act is challenged. 15. In Veerappa Pillai v. Raman Raman Ltd. [1952 SCR 583 : AIR 1952 SC 192] , CCE v. Dunlop India Ltd. [(1985) 1 SCC 260 : 1985 SCC (Tax) 75 : AIR 1985 SC 330] , Ramendra Kishore Biswas v. State of Tripura [(1999) 1 SCC 472 : 199 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Company Ltd. Vrs. Employees State Insurance Corporation, 2012 SCC OnLine Ori 90. 15. In a case where assessment order was challenged before the High Court and the High Court quashed the same invoking writ jurisdiction, the Hon ble Supreme Court in the matter of CIT Vrs. Chhabil Dass Agarwal, (2014) 1 SCC 603 : 2013 SCC OnLine SC 717 reiterated the scope and purport of exercise of power under Article 226 of the Constitution of India and re-stated the self- imposed restrictions qua entertainment of writ petition: 12. The Constitution Benches of this Court in K.S. Rashid and Son v. Income Tax Investigation Commission [AIR 1954 SC 207] , Sangram Singh v. Election Tribunal [AIR 1955 SC 425] , Union of India v. T.R. Varma [AIR 1957 SC 882] , State of U.P. v. Mohd. Nooh [AIR 1958 SC 86] and K.S. Venkataraman and Co. (P) Ltd. v. State of Madras [AIR 1966 SC 1089] have held that though Article 226 confers very wide powers in the matter of issuing writs on the High Court, the remedy of writ is absolutely discretionary in character. If the High Court is satisfied that the aggrieved party can have an adequate or suitable relief elsewhere, it can refuse to exercise its jurisdiction. The Court, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al statute are not in the nature of judicial proceedings, like proceedings in a suit in as much as the assessing officer does not adjudicate on a lis between an assessee and the State and, therefore, the law on the issue laid down under the civil law may not stricto sensu apply to assessment proceedings. Nevertheless, in order to appreciate the distinction between a null and void order and an illegal or irregular order, it would be profitable to notice a few decisions of this Court on the point. 19. In Rafique Bibi v. Sayed Waliuddin [(2004) 1 SCC 287] explaining the distinction between null and void decree and illegal decree, this Court has said that a decree can be said to be without jurisdiction, and hence a nullity, if the court passing the decree has usurped a jurisdiction which it did not have; a mere wrong exercise of jurisdiction does not result in a nullity. The lack of jurisdiction in the court passing the decree must be patent on its face in order to enable the executing court to take cognizance of such a nullity based on want of jurisdiction. The Court further held that a distinction exists between a decree passed by a court having no jurisdiction and consequently being ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... edy vis- -vis entertainment of writ petition by exercising extraordinary jurisdiction under Article 226 of the Constitution of India qua the Show Cause Notice (Annexure- 1) issued by the Additional Commissioner, GST Central Excise, Bhubaneswar Commissionerate. 20. In Union of India Vrs. Coastal Container Transporters Association, (2019) 20 SCC 446 the Hon ble Supreme Court has laid down as follows: 30. On the other hand, we find force in the contention of the learned senior counsel, Sri Radhakrishnan, appearing for the appellants that the High Court has committed error in entertaining the writ petition under Article 226 of Constitution of India at the stage of show cause notices. Though there is no bar as such for entertaining the writ petitions at the stage of show cause notice, but it is settled by number of decisions of this Court, where writ petitions can be entertained at the show cause notice stage. Neither it is a case of lack of jurisdiction nor any violation of principles of natural justice is alleged so as to entertain the writ petition at the stage of notice. High Court ought not to have entertained the writ petition, more so, when against the final orders appeal lies to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tice and exhaust the statutory remedy under the Act, which they have not done till date. 5. In the circumstances, to put an end to this controversy we, first of all, grant liberty to the Department to amend the show cause notices and take up additional grounds, if so advised, within a period of eight weeks from today. They will accordingly give an opportunity to the assessees to reply to the amended show cause notice as well as the original show cause notice within a period of six weeks from the date of the assessees receiving the amended show cause notice. 6. On receiving replies from the assessees the Assessing Authority shall hear and dispose of the matters as expeditiously as possible in accordance with law and in accordance with the directions given hereinabove. 7. We make it clear that the Assessing Authority will decide the matters uninfluenced by any observations made by the High Court/Tribunal in the earlier round of litigation. 8. All contentions on both sides are expressly kept open. At this stage we do not wish to express any opinion on the merits of the case. 22. In an identical case relating to writ petition questioning the show cause notice relating to service tax un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or contravention of any provision of any Act, is a question of fact depending upon the facts and circumstances of a particular case. 7. On perusal of the aforesaid judgment of the Hon ble Supreme Court, it is clear therefrom that Hon ble Supreme Court in the said case was dealing with an appeal filed by the Collector of Central Excise, Hyderabad against an order passed by the Tribunal. In the facts and circumstances of the said case, Hon'ble Supreme Court came to hold that this finding of fact having been ultimately held against the revenue by the Tribunal which is the final fact forum and dismissed the appeal filed by the revenue on the basis that it did not want to interfere the facts determined by the Tribunal in the said case. 8. In the present set of circumstances of the case, any finding by the Court at this stage is likely to be prejudicial, either the Petitioner-BDA or the Service Tax Authority. *** 23. In Supreme Paper Mills Limited Vrs. Assistant Commissioner of Commercial Taxes, (2010) 11 SCC 593, the Hon ble Supreme Court after taking note of earlier case being Sales Tax Officer, Ganjam Vrs. Uttareswari Rice Mills, (1973) 3 SCC 171 : 1973 SCC (Tax) 123, wherein cha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reads thus: 7. Section 11-A thus deals with various facets including non-levy and non-payment of excise duty and contemplates issuance of a show-cause notice by the Central Excise Officer requiring the person chargeable with duty to show cause why he should not pay the amount specified in the notice . In terms of sub-section (10) of said Section 11-A, the person concerned has to be afforded opportunity of being heard and after considering his representation, if any, the amount of duty of excise due from such person has to be determined by the Central Excise Officer. Without going into other details regarding the period of limitations and the circumstances under which show-cause notice can be issued, the crux of the matter is that such determination is after the issuance of show-cause notice followed by affording of opportunity and consideration of representation, if any, made by the person concerned. *** 10. The issuance of show-cause notice under Section 11-A also has some significance in the eye of the law. The day the show-cause notice is issued, becomes the reckoning date for various issues including the issue of limitation. If we accept the submission of the respondent that a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Paragraph 5 of said Judgment speaks as follows: 5. We see no justifiable reason to interfere with the order under challenge. However, we clarify that when a notice under Section 148 of the Income Tax Act is issued, the proper course of action for the noticee is to file return and if he so desires, to seek reasons for issuing notices. The assessing officer is bound to furnish reasons within a reasonable time. On receipt of reasons, the noticee is entitled to file objections to issuance of notice and the assessing officer is bound to dispose of the same by passing a speaking order. In the instant case, as the reasons have been disclosed in these proceedings, the assessing officer has to dispose of the objections, if filed, by passing a speaking order, before proceeding with the assessment in respect of the abovesaid five assessment years. 28. The present case seems neither to be a case of lack of jurisdiction nor is there any allegation of violation of principles of natural justice. Even though point of limitation is raised as a matter of jurisdictional fact, the same being mixed question of fact and law, the Petitioner has ample opportunity to agitate such an issue before the Adju ..... X X X X Extracts X X X X X X X X Extracts X X X X
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