TaxTMI 
TaxTMI 
2010 (12) TMI 79
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....al Board as per the provisions of the Finance Act, 1994 and to issue other order or direction as may be deemed fit and proper in the facts and circumstances of the case. 2. We have heard Mr.J.K. Mittal, learned counsel for the petitioner and Mr. Mukesh Anand, learned standing counsel for Central Excise and Custom. 3. It is submitted by Mr. Mittal that the notice to show cause is absolutely vulnerable as the levy is totally impermissible. He has referred to various provisions of the Finance Act, 1994 and to the circular No. 80/10/2004-ST dated 17.9.2004 which has clarified, as pleaded, that the construction of the buildings which are used by Government organization established for charitable or philanthropy purposes, etc. are non-commercial in nature and would not attract service tax. He has commended us to paragraph 13.2 of the circular which reads as follows: "13.2 The leviability of service tax would depend primarily upon whether the building or civil structure is „used, or to be used for commerce or industry. The information about this has to be gathered from the approved plan of the building or civil construction. Such constructions which are for the use of organ....
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....nder law. Learned counsel for the department submitted that this is a summon issued under Section 14 of the Central Excise Act, 1944. In essence, the submission of Mr. Mukesh Anand is that this is a preliminary proceeding and no coercive steps shall be taken without giving an adequate opportunity of hearing and even if the petitioner is found liable to service tax, the same shall be adjudicated upon where the petitioner shall also be given an opportunity of hearing. In view of the aforesaid submissions of Mr. Anand, learned standing counsel we are inclined to treat the inquiry a preliminary inquiry and the concerned authority shall afford an opportunity of hearing to the petitioner who can produce the requisite documents highlighting that he is not liable to service tax. If the petitioner has submitted that documents which are available with him or which he is required to produce as per his understanding of the proceeding the preliminary enquiry shall be proceed. To cut short the delay it is directed that the petitioner or his authorised representative shall appear before the authority who had issued the notice on 01.10.2010. Needless to say, it is a preliminary inquiry and n....
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....aragraphs 23 and 24 of the Show Cause Notice date 15.10.2010 which read as follows: "23. M/s L.R. Sharma & Co., V-17, Green Park Ext., New Delhi-110016, are required to produce at the time of showing cause, all evidence upon which they intend to rely upon in support of their defence. They are also required to indicate in their written reply as to whether they wish to be heard in person before the case is adjudicated failing which it would be construed that they do not wish to be heard in person. 24. If no show cause is shown against the action proposed to be taken, within the stipulated period and / or they don't seek personal hearing and / or they do not appear before the adjudicating authority when the case is posted for hearing, the case will be decided on the basis of evidence available on records." 8. To appreciate the submissions raised at the bar, we have carefully perused the pleadings and the notice to show cause and our previous order. Upon hearing the learned counsel for the petitioner, what we have understood, is that the plea of the petitioner is that it is not required to get itself registered and is not liable to pay service tax. There can be no bar that....
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....ourt, furthermore in its judgment, has referred to some binding precedents which have been operating in the field. The High Court, therefore, cannot be said to have committed any jurisdictional error in passing the impugned judgment." 11. In Hindustan Poles Corporation (supra), the Apex Court was dealing with an appeal from the show cause notices issued by the Additional Collector of Central Excise, Calcutta - I. In the said case, it was held by their Lordships thus: "40. Before we part with this case we would like to impress upon the respondent authorities that before issuance of show cause notices the Revenue must carefully take into consideration the settled law which has been crystallized by a series of judgments of this Court. The Revenue must make serious endeavour to ensure that all those who ought to pay excise duty must pay but in the process the Revenue must refrain from sending of indiscriminate show cause notices without proper application of mind. This is absolutely imperative to curb unnecessary and avoidable litigation in Courts leading to unnecessary harassment and waste of time of all concerns including Tribunals and Courts." 12. On a perusal of the afores....