TaxTMI 
TaxTMI 
2010 (12) TMI 1149
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....d CM No. 21296/2010 : Heard Mr. J.K Mittal, learned counsel for the petitioner and Mr. A.S. Chandhiok, learned ASG with Mr. H.C. Bhatia, learned counsel for the Union of India and Mr. Mukesh Anand, learned counsel for the respondents Nos. 2 and 4. 2. By this writ petition, the petitioner has prayed for issuance of a writ of Certiorari for quashment of the show cause notice dated 22nd October, 2010 contained in Annexure-P1. 3. Mr. J.K. Mittal, learned counsel for the petitioner has raised the following contentions:- (a) If the show cause notice is read in a proper perspective, it would reflect that there is non-application of mind by the 2nd respondent, the Commissioner of Service Tax inasmuch as....
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.... as the dictionary clause contained in Rule 2(e) of the Cenvat Credit Rules, 2004, defines exempted services to mean taxable services which are exempt from the whole of the service tax leviable thereon and includes services on which no service tax is leviable under Section 66 of the Act and, therefore, the demand of the exemption certificate by the respondents is contrary to law. 4. Mr. J.K. Mittal, learned counsel for the petitioner in support of his submission has drawn inspiration from a Division Bench decision of this Court in Poona Bottling Co. Ltd. and Another v. Union of India and Ors. - 1981 (8) E.L.T. 389 (Del.). 5. Mr. A.S. Chandhiok, learned ASG appearing for the Union of India submitted that Respondent No. 3 had ....
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....f the exemption certificate. It is urged by the respondents that it is open to the petitioner to put forth the stand and stance that it is not liable to pay the tax under any provisions of the Act and the same shall be adjudicated in accordance with law. 6.  To appreciate the submissions raised at the bar, we have carefully gone through the show cause notice contained in Annexure-P1. On a scrutiny of the same, we are of the considered opinion, a prima facie opinion has been expressed in the show cause and inasmuch in paragraph 13, it has been stated thus :- 'P13. The Noticee is further informed that if no cause is shown against the action proposed to be taken within the stipulated period of 30 days of the receipt of this not....
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....h a grant of exemption certificate is not necessary in view of the definition under Rule 2(e) of the Cenvat Credit Rules, 2004. On a reading of the said definition, it is clear that under certain circumstances one is not liable to pay the tax and hence, the obtaining of exemption certificate is not necessary. That being the position, it is open to the petitioner to show in law that it is not liable to pay the tax and, therefore, the show cause is to be understood in a composite manner and should not be segregated in bits. A mere reference to the return would neither clothe the authority with jurisdiction to demand the exemption certificate as stated by the learned ASG nor does it debar the petitioner to put forth its claim in future that it....
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....ragraph, we find that the Division Bench has given emphasis on the total non-application of mind and also a command or advice given by the Board of Taxes. In the present case, we do not perceive total lack of jurisdiction or total non-application of mind. It cannot be in dispute that the Respondent No. 2 can proceed under the Act. What is contended by Mr. Chandhiok, learned counsel for the respondent is that whether the petitioner is liable to pay tax or not would be in the realm of the adjudicating authority and any authority who has the jurisdiction has the authority to deal with both jurisdictional and adjudicatory facts. 12. As far as the factual matrix relating to the command or advice given by the Respondent No. 3 is concerned....