2018 (4) TMI 976

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...., learned standing counsel for the respondent, is put on notice. 3. W.P.Nos.502 of 2013, has been filed for issuance of a writ of certiorari, to quash the order of Superintendent (Grade IV) Service Tax Division IV, Office of the Deputy Commissioner of Service Tax, Chennai IV Division, Service Tax Commissioner, Chennai, the 2nd respondent in both the appeals, in C.No.IV/16/52/09/1979 dated 12.12.2012, which is reproduced hereunder. "Sir, Sub:  Service Tax  Non Payment of Service Tax dues Reg. Ref:  Order-in-Original 47/2011 dt. 26.5.2011 and  this office letters of even No.dt.13.9.2011,   23.12.2011 & 21.2.2012 ----- An amount of Rs. 44,85,475/- has been c....

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....y the said amount in terms of the provisions of Section 73(2) of the Act ibid. ii) I confirm the Service Tax demand of Rs. 30,90,000/- (Rupees Thirty Lakhs Ninety Thousand Only) on M/s.Ocher Studios Pvt. Ltd., Chennai, under the proviso to Section 73(1) of the Finance Act, 1994 and order them to pay the said amount in terms of the provisions of Section 73(2) of the Act ibid. iii) I order for reversal of irregular Cenvat Credit of Rs. 81,457/- under Rule 14 of the Cenvat Credit Rules, 2004 and payment of equal amount in terms  of Section 73(1) of the Finance Act, 194. iv) I appropriate the service tax of Rs. 10,76,782/- (Rupees Ten Lakh Seventy Six Thousand Seven Hundred and Eighty Two only), paid by Cash and ....

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....is paid along with interest and the reduced penalty, within thirty days from the receipt of this order. xii) I impose of Rs. 200/- (Rupees Two Hundred only) on M/s.Ocher Studios Pvt. Ltd., for every day or at the rate of two percent of tax determined per month, which ever is higher, starting with the first day after the due date till the date of actual payment under Section 76 of the Act, in respect of the demand made at (ii) & (iii) above.  However, the total amount of the penalty payable under this section shall not exceed the actual service tax payable." 5. Before the writ Court, contention has been made, that order-in-original No.47 of 2011, dated 26.05.2011 in SCN No.174 of 2009 dated 16.04.2009, was not communicated t....

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....47 of 2011 dated 26.05.2011 in accordance with law. Accordingly, W.P.No.502 of 2013 stands dismissed.  Consequently, connected Miscellaneous Petition is dismissed." 8. Ultimately, at paragraph No.5, writ Court ordered as hereunder: "5. Since the copy of the order passed in the  order-in-original No.47 of 2011 dated 26.05.2011 has already been dispatched and received by the petitioner, and in any event a copy of the order has also been furnished to the learned counsel for the petitioner today, no further direction can be issued in W.P.No.503 of 2013.  Accordingly, the writ petition stand closed.  However, there is no order as to costs." 9. Impugned order is assailed on the following grounds: (a) Writ Cou....

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....tution provisions under Article 14 and Article 265 of the Constitution of India. (e) Writ Court failed to consider that the petitioner was not permitted to file an appeal under the provisions of the Central Excise Act of 1944 against the order in original bearing No.47 of 2011 dated 26.5.2011.  It was brought to the notice of the respondents that the certified copy of the order has not been furnished and hence the statutory appeal could not be filed.  However, till date the order had not been communicated to the petitioner and hence the impugned order is liable to be quashed. (f) Impugned order is violative of the principles of natural justice.  Once the statute has granted a right of appeal and the petitioner has not e....

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....f M/s.Ocher Studios Pvt. Ltd.  Thus, as rightly observed, plea of non service /communication, of the certified copy of the order-in-original No.47 of 2011 dated 26.05.2011, cannot be countenanced. 11. Order-in-original  is of the year 2011. No prejudice would be caused to the respondents, if a fresh certified copy of the same is furnished. Inasmuch as the appellant had already received the copy of the order-in-original No.47 of 2011 dated 26.05.2011, as early as on 15.09.2011, it is made clear that limitation would commence only from 15.09.2011 and not from the date of receipt of another certified copy of the order-in-original No.47 of 2011 dated 26.05.2011. 12. In the light of availability of an alternate remedy, order-in-o....