TaxTMI 
TaxTMI 
2014 (1) TMI 314
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....y 1994 to March 2000 and demanded an amount of Rs.9,63,14,863.71 with interest. The Commissioner (Appeals) set aside the demand notice and remanded the matter to the adjudicating authority for deciding afresh after issuing show cause and affording an opportunity of personal hearing. The Asst. Commissioner of Service Tax confirmed the differential service tax of Rs.92,77,124/- for the period August 1994 to March 2000 under Section 73(a) of the Finance Act,1994 read with Section 68 of the said Act, 1994 and also demanded interest. By the impugned order, the Commissioner (Appeals) directed the adjudicating authority to reexamine and reverify the records and make an attempt to reconcile the discrepancy and thereafter take a decision as per law.....
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....unts shown in the invoice but not the amounts realized. 3. On the other hand, Ld. AR on behalf of Revenue submits that in the present case, adjudicating authority finalized the assessment under best judgement under Section 72 of the Act 1994. She drew the attention of the Bench to Section 72 where there is no requirement of issue of notice. She submits that appellant attended personal hearing and the charge was known to them. Therefore, in this case, notice is not required. 4. After considering the submissions of both sides and on perusal of the records, we find that by order dt. 12.10.2000, the Asst. Commissioner of Service Tax finalized the assessment. It is seen that appellant filed 17 numbers of quarterly returns for the period from 1....
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.... may require under sub-section (2) of Section 71. The officer, after considering such accounts, documents or other evidence, shall make assessment. 5. The Appellant aggrieved with the assessment order, filed appeal before Commissioner (Appeals). By Order-in-Appeal dt.29.10.2002, the Commissioner (Appeals) set aside the assessment order and allowed the appeal by way of remand for de novo proceedings. For proper appreciation of the case, the relevant portion of the said order is reproduced below :- I have gone through the facts of the case, the grounds of appeal detailed submissions made at the time of personal hearing as well as the case records submitted by the lower authority. It is noticed that the assessment order issued by the lower a....
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....er Section 73 (a) of the Act 1994. Section 73 (a) reads as under :- Section 73-Value of Taxable services escaping assessment :- 73 (a) -omission or failure to make a return under section 70 for any quarter or to disclose wholly and truly all material facts necessary for assessment serve notice within 5 years from the date of filing the return. (b) - where there has been no omission or failure as mentioned in Clause (a), the Central Excise Officer has reason to believe that the value of any taxable service in any quarter has escaped assessment or has been under-assessed may serve a notice within six months from the date of filing the return and proceed to assess or reassess the value of taxable service. 7. From close reading of the above....
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....ns of 73 (a) and (b) makes it clear that a notice has to be issued within prescribed time limit as mentioned therein for the purpose of assessment or reassessment of the value of taxable service. Thus, notice is a condition precedent to a demand under Section 73. It is seen that Honble Supreme Court while dealing with demand of Central Excise duty under Section 11A of the Central Excise Act 1944 held that demand raised without notice is quashable. 9. In this context, we reproduce below the observation of the Hon'ble Supreme Court in the case of Union of India & Others Vs Madhumilan Syntex Pvt. Ltd. (supra) as under :- A perusal of the aforesaid provision....
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.... such opportunity to be heard being given before an adverse order is passed, a post facto opportunity to be heard might, in certain cases, be regarded as adequate compliance with principles of natural justice. We are of the view these cases have no relevance in considering the questions before us because it is quite apparent that in the present case no urgent or emergent action was required and Section 11A of the Central Excises Act clearly provides that prior show cause notice must be issued to the person against whom any demand on ground of short-levy or non-levy of payment of excise duty is proposed to be made. In Gokak Patel Vokkart Ltd. v. Collector of Central Excise, Belgaum - 1987 (28) E.L.T. 53 (S.C.) = A.I.R. 1987 S.C. 1161, this C....