2016 (8) TMI 94

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....t was concluded that the Show Cause Notice („SCN‟) dated 20th October 2010, issued by the Department to the Respondent/Assessee was maintainable. 2. The brief facts are that, initially, on 8th April 2010 an SCN was issued to the Respondent by the Department for the period 2004-05 to 2008-09, categorizing the services provided by the Respondent/ assessee as "tour operator services" and "business auxiliary services". It is stated that for the subsequent period, i.e., April 2009 to March 2010, the Respondent was asked to provide the details/ information by various letters, but the Respondent failed to do so. Citing the above failure of the Respondent to furnish the requisite information, and further stating that the Respondent fai....

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....stated that the Respondent failed to furnish returns in terms of Section 70 of the Act for the period in question. Further in para 9 of the SCN it was stated: "Whereas, having regard to all the evidences and chain of events as detailed in the preceding paragraphs, the invocation of the provisions of Section 72 (a) of the Act ibid requiring determination of the assessment of the Service Tax liability of the party appears justifiable." 6. The case of the Respondent was that it had filed a return in Form ST-3 for the period in question and, therefore, there was no basis for invoking Section 72 (a) of the Act. As regards the alleged failure to provide information, it was pointed out that the Department has issued letters dated 03.06.2010, 05.0....

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....held: "Though the party has contended that they had already filed ST-3 returns of the said period but the same was also discussed and provided to audit officers during the course of audit. I find that it is a mere excuse taken by the party instead of providing information sought relief by filing writ petition before the Hon'ble High Court after issue of present SCN without waiting for adjudication proceedings which are quasi judicial in nature." Further it was held that since the Respondent had failed to furnish the information sought, the Department was justified in invoking Section 72 "to protect the Govt. revenue." The SCN dated 20th October 2010 was accordingly held to be maintainable. 9. It has been noted by the Commissioner (Appe....

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....provided. Consequently the SCN was "only on the basis of assumption and presumption." Consequently, the CESTAT held the SCN to be not maintainable. 11. Mr. Pramod Rai, learned counsel for the Department, was unable to point out how Section 72 (a) could possibly be invoked when a admittedly the return for the period April to September, 2009 had been filed on 22nd October 2009 and for the period October 2009 to March 2010 on 22nd April 2010 with the jurisdictional service tax office. Therefore, the factual basis on which the SCN was issued invoking Section 72(a) of the Act was nonexistent. Secondly, the SCN does not make out a case for invoking Section 72 (b) of the Act. Consequently, the question of adopting best judgment assessment did not....