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TMI Blog2025 (2) TMI 561X X X X Extracts X X X X X X X X Extracts X X X X ..... acts of the case, the Adjudicating Authority has also passed an Order-in-Original dealing with such contentions of the petitioners confirming the demand. However, the show cause notice dated 29th September, 2020 did not contain any of the grounds on which Order-in-Original is passed or the grounds on which the objections are disposed of in pre-consultation during the pendency of these petitions. In such circumstances, the respondents-authorities is required to issue a fresh show cause notice in accordance with law. In view of the decision of this Court in case of L AND T Hydrocarbon Engineering Ltd. [2022 (4) TMI 70 - GUJARAT HIGH COURT], it is opined that none of the show cause notice except Special Civil Application No. 5685 of 2022 can be sustained in absence of pre-consultation notice. Even in Special Civil Application No. 5685 of 2022, the show cause notice contained the ingredients of the issue of liability of the petitioner but it only refers to the difference in value of income as per Form 26AS and as per Form ST-3 returns filed by the petitioner. In such circumstances, the show cause notices issued in the respective petitions are hereby quashed and set aside and therefore ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on'ble Supreme Court with regard to the issue of limitation if the impugned show cause notice is quashed and set aside by this Court. 6. Considering the above submissions, the respondent authorities are directed to undergo the process of pre-consultation keeping the impugned show-cause notice/order in original in abeyance and place the outcome of such pre-consultation on record before the next date of hearing. Such exercise shall be completed within four weeks. 7. Stand over to 26th October, 2023. 6. Accordingly, the pre-consultation was granted and the respondents have not placed on record the outcome of the pre-consultation granted except in Special Civil Application No. 5685 of 2022. 7. The details of each of the petitioner are summarized as under:- Special Civil Application No. Party Name Pre-SCN granted or not as per the order of Hon'ble High Court of Gujarat vide order dated 27.09.2023 Affidavit of the outcome of such pre-SCN consultation Issue raised by the department in the show cause notice SCA No. 18864 of 2021 Jay Mahakali Industrial Service Granted Affidavit provided on 23.12.2024 SCN issued based on difference in value of income as per FORM 26AS and as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts etc. referred to in paragraph No.3 of the show cause notice without reference to the type of services which is liable to service tax. The show cause notice itself is absolutely vague and without reference to any of the contentions which are raised by the petitioners in pre-consultation which is already decided by the respondents-authorities vide order dated 19.10.2023 passed disposing such contentions during the pendency of these petitions. 11. In the facts of the case, the Adjudicating Authority has also passed an Order-in-Original dealing with such contentions of the petitioners confirming the demand. However, the show cause notice dated 29th September, 2020 did not contain any of the grounds on which Order-in-Original is passed or the grounds on which the objections are disposed of in pre-consultation during the pendency of these petitions. In such circumstances, the respondents-authorities is required to issue a fresh show cause notice in accordance with law. 12. So far as the other petitions are concerned, on perusal of the show cause notices, none of the petitioners would fall within the scope of para 5 of the Circular No. 1079/03/2021-CX dated 11th November, 2021. The C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sidering the facts of the said case held as under:- ABSENCE OF MANDATORY PRE-SHOW CAUSE NOTICE CONSULTATION IS FATAL TO THE PRESENT SHOW CAUSE NOTICE. 83 In view of the Circular No. 1053/2/2017-CX., dated 10th March 2017, it is clear that the Board had made the pre-show cause notice consultation mandatory for the Principal Commissioner/Commissioner prior to the issuance of show cause notice in cases involving the demands of duty above Rs.50 lakh. Such consultation is required to be done by the adjudicating authority with the assessee as an important step towards reducing the necessity of issuing show cause notice. 84 The contention of the learned A.S.G. that since the present case originated from the intelligence gathered from the DGGI such pre-consulting is not required. The said contention runs contrary to the recent clarification issued by the Board. For the very objection now being raised, a clarification was sought by the DGGI office from the Board as to whether the DGGI formations will fall under the exclusion category of the master circular dated 10th March 2017 read with the circular dated 19th November 2020. The Board vide the Circular No. F.No.116/13/2020-CX-3 Dated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o its conduct. It is to facilitate this very exercise that para 5.0 finds place in the Master Circular. The mere possibility that at the end of the adjudication process, the Petitioner may have to face consequences for having committed an 'offence' under 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 be 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 rendered redundant. Further, without the conclusion of the adjudication on the SCN, the Respondent would not be in a position to decide whether an offence is made out. (ii) Tube Investment of India Ltd. Vs. Union of India - 2018-TIOL- 330-HC-MAD-CX 7. Admittedly, the above referred procedure, which has been held to be a mandatory by C.B.E. & C., has not been adhered to in the instant case. That apart, when the petitioner had been given an opportunity to submit the reply to the Audit Slip, which they had subm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere any duty of excise has not been levied or paid or has been short-levied or short-paid or erroneously refunded, by the reason of- (a) fraud; or (b) collusion; or (c) any wilful mis-statement; or (d) suppression of facts; or (e) contravention of any of the provisions of this Act or of the rules made thereunder with intent to evade payment of duty. by any person chargeable with the duty, the Central Excise Officer shall, within five years from the relevant date, serve notice on such person requiring him to show cause why he should not pay the amount specified in the notice along with interest payable thereon under section 11AA and a penalty equivalent to the duty specified in the notice." 88 The case on hand by any stretch of imagination cannot be described as an offence/preventive case whatsoever. This is not a case where the goods have been removed illicitly without a statutory invoice. In the cases of offence, there is no dispute about the dutiability or taxability of the transaction. The only dispute is whether the transaction is put through. In other words, the only question is whether, the goods have been actually manufactured or removed. The dispute is whether ..... X X X X Extracts X X X X X X X X Extracts X X X X
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