TaxTMI 
TaxTMI 
2018 (2) TMI 86
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....hat the impugned show cause notice is contrary to the order passed in W.P.No.9496 of 2014 dated 02.04.2014. Against the order dated 04.02.2016, the respondents preferred an appeal before the Division Bench in Writ Appeal No.342 of 2016. The Division Bench allowed the appeal and remanded the writ petition to be considered afresh along with M.P.No.1 of 2015 in W.P.No.9496 of 2014. The said writ petition namely, W.P.No.9496 of 2014 was filed by the petitioner, challenging the proceedings dated 28.03.2014, by which, the second respondent stated that it is noticed that the petitioner's have paid the service tax for the period from 01.07.2012 to 31.12.2013 under protest and stopped paying service tax for the period from 01.01.2014 in view of the new agreement dated 26.12.2013 entered into with the service receiver and that the non-payment of the service tax appears to be incorrect since the activity of generating electricity does not amount to the process of manufacture or production of the goods and the activity undertaken by the petitioner does not fall under the negative list as contended by them and therefore, the petitioner was requested to pay the service tax for the months of ....
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....ner, though all the details were available with the second respondent, they once again furnished the same by letters dated 22.09.2015 and 23.09.2015. It is thereafter the petitioner was served with the copy of the modification petition in M.P.No.1 of 2015, in which they sought leave of this Court to modify the previous order. However, without obtaining any orders from the Court, the impugned show cause notice dated 12.10.2015 was issued which has been challenged in this Writ Petition. Therefore, it is submitted that the issue would be as to whether the petition for modification is maintainable and it is for the revenue to sustain such petition by advancing arguments at first which will be countered by the petitioner suitably. The learned counsel for the petitioner would fairly submitted that if M.P.No.1 of 2015 is to be allowed by this Court and the order in W.P.No.9496 of 2014 is to be modified, then W.P.No.36494 of 2015 is to be dismissed and therefore, the revenue should first argue M.P.No.1 of 2015. In the light of the said submission, the Court called upon the learned Senior Panel Counsel for the revenue to make submissions on the modification petition in M.P.No.1 of 2015. ....
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....aring for the writ petitioner who is the respondent in M.P.No.1 of 2015 vehemently contended that the petition for modification is not maintainable and though the provisions of Code of Civil Procedure are not applicable to writ proceedings yet the principles analogous to the Code of Civil Procedure should be applied. In support of such contention, reliance was placed on the decision of the Hon'ble Supreme Court in the case of Public Service Commission, Uttaranchal Vs. Mamta Bisht and others reported in (2010) 12 SCC 204. Further, it is submitted that the law will protect only the vigilant and a review petition if has to be filed, the period of limitation is only 30 days and the present application filed by the petitioner beyond the said period without an application for condonation of delay is not maintainable. The writ petition was disposed of on 02.04.2014 and after 17 months, the miscellaneous petition has been filed and the same is liable to be rejected. In support of such contention, reliance was placed on the decision of the High Court of Delhi in the case of Smt.Sarla Devi Jain Vs. Union of India (UOI) reported in AIR 2006 Delhi 12. Further, it is submitted that the writ....
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....ule 3. In this regard, notification No.22/2014 dated 16.09.2014 was referred to, a notification issued in exercise of powers under Rule 3 of the Service Tax Rules. Referring to Section 83(A) of the Finance Act, it is submitted the said provision deals with power of adjudication with regard to penalty by a Central Excise Officer who may be designated by notification in the official gazette. One such notification being notification No.30/2005-ST, dated 10.08.2005 which fixes the monetary limit of Central Excise Officer for the purposes of adjudging penalty and not tax. The circular relied on by the revenue dated 10.08.2005 is not a notification under Section 83(A) and therefore cannot have force of law. On the above grounds, the learned counsel submitted that the petition for modification is liable to be dismissed and consequently, the impugned show cause notice has to be held to be bad in law. 8.In reply, the learned counsel for the revenue would submit that much of the argument is directed against the counsel who appeared for the revenue in the earlier proceedings and the writ petition was disposed of at the admission stage and at no point of time, the counsel made a submission ....
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.....2015. Immediately thereafter, the Miscellaneous Petition has been filed on 09.10.2015 for modification. One more reason which will work against the writ petitioner is that though the Court stipulated a time frame for the second respondent to pass orders, the petitioner did not approach the Court complaining of any violation of the time frame fixed. Therefore, I am of the view that the petitioner was not prejudiced in any manner on account of no action being taken by the Revenue between 16.09.2014 and 02.09.2015. 11.The next aspect to be seen is as to whether the petition for modification is maintainable. In Puran Singh's case, the Hon'ble Supreme court pointed out that many procedures prescribed in the Code of Civil Procedure are responsible for delaying the delivery of justice and causing delay in securing the remedy available to a person who pursues such a remedy and the High Court should be left to adopt its own procedure for granting relief to the persons concerned and the High Court is excepted to adopt the procedure which can be held to be not only reasonable but also expeditious. 12.Learned counsel for the writ petitioner concedes to the legal position, but hi....
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.... in the miscellaneous petition is to permit the revenue to issue a show cause notice by an appropriate authority. Would this amount to review of the earlier order? In my considered view, it will not for the reason that the decreetal portion of the order as contained in paragraph No.8 is to answer to a proceedings by treating it as a show cause notice. In the place of "such proceedings", a show cause notice is sought to be issued by the appropriate authority after quantifying the amount which is mandatory under Section 73(1) of the Act. Without a proper show cause notice, adjudication cannot take place. 15.Furthermore, on a reading of the proceedings dated 28.03.2014, it is clear that it is only an intimation. This is on account of the fact that the petitioner stopped paying service tax from 01.01.2014. Therefore, the second respondent requested the petitioner to pay service tax, failing which stated that action for recovery will be initiated. Thus, the communication/intimation dated 28.03.2014 cannot be treated as a show cause notice nor can be treated as a demand but only as an intimation. It would have been well open to the petitioner assessee to respond to the letter dated 28....
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.... should not be permitted to do so as this distance of time. In reply, the learned counsel for the revenue would submit that he made a request to the Court to tag M.P.No.1 of 2015 in W.P.No.9496 of 2014 along with W.P.No.36494 of 2015. However, the matter was not listed and the writ petition alone was disposed of. To verify the correctness of the said stand, the Court verified the order sheet and found that the Court has recorded on 21.07.2016 that there was a request for modification petition to be heard. Therefore, the interest of revenue cannot be put to jeopardy on account of technicalities or on account of the fault committed by the Court in not listing M.P.No.1 of 2015 along with this writ petition. 18.During the course of argument, the learned counsel for the revenue submitted that the second respondent has no jurisdiction to issue a show cause notice on account of the circular dated 10.08.2005. This contention has not been specifically pleaded in the affidavit filed in support of M.P.No.1 of 2015 and has been vehemently opposed by the learned counsel for the petitioner by placing reliance on the judgment in the case of Kalyan Singh Chouhan vs. C.P.Joshi reported in 2011 (....
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....ears they abruptly stopped payment of service tax for the period from 01.01.2014. Therefore, it is a misnomer to term the proceedings dated 28.03.2014 as a demand notice. The petitioner states that the Department acted mischievously in issuing the impugned notice after collecting information from the petitioner and they have changed their stand in the impugned notice. Firstly the petitioner without any demur furnished information sought for by the Department and based on such information the impugned notice has been issued. I hardly see any mischief in doing so. Change of "colour" is alleged. Unless and until a stand is specifically taken and subsequently a totally different stand is taken, there could be a change. In the present proceedings no stand could be stated to have been taken in the proceedings dated 28.03.2014. It being only an intimation, nothing more flows from it. The intimation to pay service tax is on account of the conduct of the petitioner in abruptly having stopped remitting service tax from 01.01.2014. Thus, it is clear that the allegation which the petitioner has to meet has been spelt out for the first time in the impugned show cause notice. For the above reaso....