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TMI Blog2025 (2) TMI 521X X X X Extracts X X X X X X X X Extracts X X X X ..... the department. The fact remains that the department itself had concluded in Reply to Statement of Facts. In fact, the respondent had also recommended for closure and dropping of the proposal in the show cause notice. However, the issue is kept alive for over two decades and for the first time the department woke up only on 19.01.2021, pursuant to which the Principal Commissioner has accorded permission for adjudication. The adjudication of the show cause at this distant point of time is unnecessary and unwarranted, particularly in the light of the SoF of the department having difference of opinion with the CERA audit objection. Therefore, the impugned show cause notice ought not to have been issued and not proceeded and in any event ough ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ar 2010 and the petitioner had also appeared for personal hearing before the adjudicating authority. However, no order was passed for the reasons best known to the respondent. 3. It is submitted that under similar circumstances a catena of decisions have been rendered by the Courts including this High Court wherein show cause notice proceedings have been quashed. The learned counsel for the petitioner drew the attention of this Court to the recent decision of the Hon'ble Supreme Court in the case of Union of India and others Vs ATA Frieght Line (1) Pvt.Ltd., reported in 2023 (2) TMI 1131 Vs AI which affirms the decision of the Bombay High Court court in the case of ATA Freight Line (1) Pvt Ltd., Vs Union of India, Commissioner of CGST ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he respondent submitted that the show cause notice has been issued in the back ground of CERA audit and the case was transferred to the Call Book on 30.12.2011, wherein a reference has been made to statement of facts given by the department pursuant to the CERA objection on 09.06.2009. 6. It is submitted that although the department was not inclined to issue show cause it was compelled to issue show cause in view of the CERA objection. It is submitted that the objection of the department was not accepted and therefore the case was transferred to the Call Book. It is further submitted that in response to the objection of the department, the Senior Audit Officers of CERA RP-III, over ruled the objection and therefore the department had trans ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oresaid amount the petitioner also paid service tax @ 12.36 % on the 33% of the advance amount, claiming abatement by treating the service as Commercial and Industrial Construction service as defined in Section 65 (25 b) of the Finance Act, 1994 liable to service tax in terms of Section 65 (105) ZZQ of the Finance Act, 1994 with effect from 01.06.2007. The amendment to Finance Act, 1994 vida Finance Act, 2007 came into force as a result of which persons like the petitioner were also entitled to opt to pay service tax as that of a works contract service in terms of Section 65 (105) ZZZZ (a). The department has concluded that the petitioner was not entitled to alter the basis of valuation for the purpose of payment of service tax under the pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... serve on the assessee a notice containing all or any of the requirements which may be included in a notice under subsection (2) of section 70 and may proceed to assess or reassess the value of taxable service, and the provisions of this Chapter shall so far as may be apply as if the notice were a notice issued under that sub-section. 10. It is not to be resorted by the department where particular there is a conflicting view of the Central Excise Officer. In event, the Audit objection and decision to raise objection by the department is an internal arrangements between the department. The fact remains that the department itself had concluded in Reply to Statement of Facts No.127/2008-09 as follows:- "3. During the course of audit of accou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is distant point of time is unnecessary and unwarranted, particularly in the light of the SoF of the department having difference of opinion with the CERA audit objection. Therefore, the impugned show cause notice ought not to have been issued and not proceeded and in any event ought to have been dropped. The fact remains that the petitioner has discharged service tax liability as a service provided in works contract service as defined in Section 65 (95) (ZZZA) of the Finance Act, 1994. 12. Therefore, this Court is of the view that the writ petition has to be allowed. The excess amount deposited by the petitioner during the course of investigation by CERA has to be refunded by the respondent within a period of two months together with inte ..... X X X X Extracts X X X X X X X X Extracts X X X X
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