TaxTMI 
TaxTMI 
2018 (10) TMI 1376
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.... was known to the authorities. He has referred to pleadings in paragraph 19 to 36 of the writ petition and has submitted that, the manner in which the CENVAT credit was being claimed by the petitioners, was made known to the authorities in diverse proceedings. At no stage, did the authorities question the treatment of the accounts in such manner. He has submitted that, the period for which, the show-cause notice has been issued was covered by the proceedings initiated in respect thereof by the department, independent of the show-cause notice. Therefore, there is no question of suppression of any fact by the petitioners. The department cannot invoke the extended period of limitation. In support of such contention, he has relied upon 2007 Volume 10 Supreme Court Cases page 337 (Continental Foundation Joint Venture Holding, Nathpa, H.P. v. Commissioner of Central Excise, Chandigarh-I), 2005 Volume 7 Supreme Court Cases page 749 (Anand Nishikawa Co. Ltd. v. Commissioner of Central Excise, Meerut) and 2013 Volume 9 Supreme Court Cases page 753 (Uniworth Textiles Limited v. Commissioner of Central Excise, Raipur). 3. Relying upon 1993 Volume 204 Income Tax Reports page 276 (Raja Mookh....
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....0 Supreme Court page 3413 (United Bank of India v. Satyawati Tondon & Ors.), All India Reporter 2013 Supreme Court page 3518 (Commissioner of Income-tax, Gujarat v. Vijaybhai N. Chandrani) and 2014 Volume 1 Supreme Court Cases page 603 (Commissioner of Income Tax & Ors. v. Chhabil Dass Agarwal) in support of his contentions. 5. The petitioners are assessees under the Finance Act, 1994. The petitioners have suffered a show-cause notice dated October 18, 2016 for the period from 2011 to 2015 allowing constructions of Sections 66A, 66C(1), 67 and 68 of the Act of 1994. On the basis of intelligence input, that, the petitioners were not paying 50% of the CENVAT credit as required in terms of Rule 6(3B) of the CENVAT Credit Rules, the registered office of the petitioners were visited by the officers of the Anti Evasion Unit of Service Tax-I, Commissionerate on January 27, 2016 for verification of records and documents. The petitioners had issued few letters to the department on this subject subsequent thereto. The petitioners have contended that, they took credit to the extent of net 50% of the Service Tax including cess, which was utilized thereafter. The balance 50% credit was rever....
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....the Service Tax audit for the period 2007-2013 stood concluded. Fifth, a Service Tax audit was sought to be conducted by a notice dated February 17, 2015. Pursuant to such notice, the petitioners produced all their ledger accounts, CENVAT credit ledger, Reconciliation of CENVAT credit taken as per ST-3 return vis-a-vis CENVAT Credit Register as well as, Trial Balance. After such audit, a show-cause notice dated April 19, 2016 has been issued to the petitioners. Sixth, a Service Tax Audit proceedings initiated by a notice dated September 15, 2016 where the petitioners took a stand that, the period overlaps with the previous show-cause notice. Seventh, by a notice dated January 20, 2016 interest was demanded which the petitioners paid. 7. The respondents have invoked the extended period of limitation on the ground that, the petitioners intentionally, suppressed the fact of Service Tax not paid by them and irregular CENVAT credit availed by them. According to the respondents, had the department not initiated investigation against them on January 27, 2016, the petitioners would have continued to evade payment of Service Tax and would have availed and utilized CENVAT credit in irregu....
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....) has held in the facts of that case that, the assessee was not guilty of suppressing any fact deliberately. It has found in that case that, the assessee had made true and full disclosure. The department had access to relevant materials. Therefore, the assessee could not be held guilty of wilful suppression. Uniworth Textiles Limited (supra) has held that, non- payment of duties may amount to ordinary default. For the purpose of construing non-payment of a duty or an ordinary default in payment of duties as suppression, would require something more. In the facts of that case, it has held that, there was no suppression on the part of the assessee. 10 Writ Courts are slow to intervene when there exists alternative remedy. Writ Courts are even slower to intervene when a show-cause notice is assailed before it. It is a rule of self-imposed limitation rather than a rule of law. Chhabil Dass Agarwal (supra) has noted such position and has held in paragraph 15 that, "15. Thus, while it can be said that this Court has recognized some exceptions to the rule of alternative remedy, i.e., where the statutory authority has not acted in accordance with the provisions of the enactment....
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....sdiction is a pure question of law. The facts stated in the impugned show-cause notice have to be assumed as correct for the purpose of deciding the issue of jurisdiction. The issue of limitation has to be adjudicated on the same principles, so far as this case is considered. Section 73 of the Act of 1994 allows the Assistant Commissioner or the Deputy Commissioner, as the case may be, to invoke the extended period of limitation. He must have reasons to do so. There must be omission or failure on the part of the assessee to disclose wholly or truly all materials for verification of the assessment under Section 71 of the Act of 1994 for the period for which the show cause notice would be issued. In the present case, the petitioners had, disclosed all materials required for verification under Section 71 for the period from 2007 to 2013 pursuant to a notice dated December 3, 2012 and for a period upto 2015 pursuant to a Service Tax Audit notice dated February 17, 2015. The petitioners have claimed in the writ petition that all materials required for verification of assessment under Section 71 of the Act of 1994 are available with the authorities pursuant to seven several proceedings t....