TaxTMI 
TaxTMI 
2017 (3) TMI 1416
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....he first petitioner is liable to pay Service Tax. He submits that, the burden of proof is on the taxing authority to show that, a particular receipt is taxable and relies upon 1996 (87) E.L.T. page 12 (S.C) (Union of India v. Garware Nylons Ltd.) in support of such contention. Referring to 2010 (258) E.L.T. 48 (Cal.) (Commissioner of Central Excise, Haldia v. Lord's Chemicals Ltd.) and 2007 (217) E.L.T. page 343 (Cal.) (Collector of Customs, Calcutta v. Hindalco Industries Ltd.) he submits that, a show-cause notice cannot be issued on the basis of presumptions. He relies upon 1983 (13) E.L.T. page 1342 (S.C.) (East India Commercial Co. Ltd. Calcutta v. Collector of Customs, Calcutta) and submits that, notice issued contrary to the law laid down by the High Court would be invalid and the proceedings themselves would be without jurisdiction. He relies upon 2011 (266) E.L.T.) page 422 (S.C.) (Oryx Fisheries (P) Ltd. v. Union of India) and submits that, the persons proceeded against must be told of the charges against him so that he can take his defence and prove his innocence. In the event, a new case is made out such a course of action would be without jurisdiction. He relies upon 20....
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....ge 481 (S.C.) (CCE, Bhubaneswar-I v. Champdany Industries Ltd.) and submits that, unless the foundation of the case is made out in the show-cause notice, the revenue cannot take benefit of a different case at the time of hearing. Referring to the show-cause notice dated October 17, 2012 learned Advocate for the petitioners submits that, the allegation in the showcause notice is that although Service Tax was collected the same was not paid to the credit of the Central Government. He refers to Section 73A(3) of the Finance Act and 73(1) of the same Act and submits that, the scope of the two sections are different. He relies upon 2016 (44) S.T.R. page 211 (Guj.) (General Manager - Food Corporation of India v. Union of India), 2016 (44) S.T.R. page 526 (Del.) (Ebiz. Com Pvt. Ltd. v. Union of India) and 2016 (44) S.T.R. page 290 (Mum.) (Checkmate Industries Services v. Commissioner of Central Excise, Pune-III) in support of such contention. Learned Advocate for the petitioners submits that, the first petitioner could not pay Service Tax due to paucity of funds till July 2015. Payments were made subsequently. The authorities ought to have taken notice of such payments. He submits that, ....
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....thority in a quasi judicial proceeding, the Writ Court is not called upon to sit in appeal over such order, reapprise the evidence and substitute the findings arrived at by the deciding authority with its own findings, unless it is substantiated that, the impugned findings are perverse or are contrary to public policy. The first petitioner is liable to pay Service Tax. Such liability is acknowledged by the petitioners. The first petitioner had obtained a Service Tax Registration on April 4, 2007 for rendering manpower recruitment or agent service as defined in the then prevailing Section 65/68 of the Finance Act, 1994. The department has found the first petitioner to be indulging in businesses in respect of which the petitioners did not obtain requisite service tax registration. The department has found that, the first petitioner was undertaking five different types of businesses for which it did not take any registration. The show-cause notice dated October 17, 2012 makes such an allegation. The show-cause notice dated October 17, 2012 alleges that, the petitioners have violated the provisions of Sections 67, 68, 69, 70 and 73A of the Finance Act, read with Rules 4, 6 and 7 of th....
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.... entries as recorded in the private note book maintained by the labour contractor should be taken as the clearance figures of finished products of the factory. It returns a finding that, such a presumption is not permissible. East India Commercial Co. Ltd. (supra) is of the view that, a show-cause notice for launching proceedings contrary to law declared by a Court would be invalid and the proceedings would be without jurisdiction. Hindustan Poles Corporation (supra) is of the view that, the revenue must carefully take into consideration the settled law which has been crystallized by the judgments of the Supreme Court and should refrain from sending indiscriminate show-cause notice without proper application of mind. Oryx Fisheries (P) Ltd. (supra) is of the view that, the person proceeded against must be made aware of the charges in the show-cause notice. Champdany Industries Ltd. (supra) is of the view that, the foundational basis of the claim of the department has to be found from the show-cause notice. In the present case, it cannot be said that the authorities had acted without any basis in issuing a show-cause notice. The showcause notice was issued on the basis of material....