TaxTMI 
TaxTMI 
2019 (2) TMI 1622
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.... crore eighteen lakhs ninety three thousand four hundred and seventeen only) payable for the period from October 2012 to June 2017 should not be demanded from them under proviso to Section 73 (1) of the Finance Act, 1994. ii) interest at the appropriate rate on the amount of Rs. 16,18,93,417/- should not be recovered from them under the provisions of Section 75 of the Finance Act, 1994, and iii) penalty should not be imposed upon them under Section 76 and Section 78 of the Finance Act, 1994.' 2. Mr. S.Muthu Venkataraman, learned counsel appearing for the petitioner assails the impugned show cause notice on two grounds. The first ground is that Circulars issued by the Central Board of Excise, Customs and Service Tax as well as Departmental Instructions have formulated a procedure, whereby a process of consultation is envisaged as between the Assessee and the Service Tax Authorities to arrive at an amicable resolution of disputes raised by the Tax Department, prior to escalation of disputes to the level of issuance of show cause notice. The first instruction is dated 21.12.2015, in F.No.1080/09/DLA/Misc/15, the second instruction/clarification is dated 08.07.....
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.... of credit note issued by their foreign entities as profit sharing is leviable to service tax under Section 66B of the Finance Act, 1994. 9) The service tax totally amounting to Rs. 16,91,06,992/- shall be payable on the credit note received for the period from Oct 2012 to June 2017.' The Officer has thus called for the reply of the petitioner to be furnished urgently. 5. The assessee has replied to the aforesaid audit query by its letter, dated 07.05.2018 in the following terms:- 'Apropos above, the following factual submissions are made to clarify your queries regarding income received through credit notes. 1. We are licensed multi-modal transport operator (MTO) engaged in providing freight forwarding services by sea and air. 2. The copy of the agreement provided to you was drafted in 2004. Our business model has undergone drastic changes depending on the growth, specialization and core business activities and areas of strength with further factors of business climate and environment and economic constructs. 3. The agreements are broad based and non-exclusive, taking into account out business interests and specializations....
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.... a clarification in the following terms:- 'Please refer to the instruction issued vide F.No.1080/09/DLA/Misc/15 dated 21st December 2015, wherein, pre show cause notice consultation with the Principal Commissioner / Commissioner prior to issue of show cause notice in cases involving demands of duty above Rs. 50 lakhs (except for preventive / offence related SCN's) has been made mandatory. 2. Certain doubts have been expressed with regard to this. It is clarified that the pre show cause notices consultation shall be done by the adjudicating authority with the assessee concerned. This is a step towards trade facilitation and promoting voluntary compliance and also to reduce the necessity of issuing show cause notice.' 11. Instruction / Clarification F.No.1080/11/DLA/CC Conference/2016/2096/ 02148, dated 13.10.2016, further clarifies the Consultative process in the following terms:- 'Subject: Pre-show cause notice consultation in cases other than those detected by Preventive / Anti-Evasion and amount involved being more than Rs. 50 lakhs - Reg. Please refer to the notification issued vide F.No.1080/11/DLA/CC Conference/2016, dated....
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....ative process as a measure of Alternative Dispute Resolution to reduce litigation wherever possible. This is to facilitate resolution of disputes raised by the Audit in the light of the responses sought and received from the Assessee thus obviating the necessity of even a show cause notice where the dispute can be resolved in an amicable fashion. 14. Clarifications dated 08.07.2016 and 10.03.2017 make it expressly clear that these are steps towards trade facilitation and promoting voluntary compliance and also a measure to reduce the necessity of issuing show cause notices where avoidable. This is thus, a laudable initiative that has to be diligently pursued for maximum benefit to both the assessee as well as the Revenue. In the present case, the objections dated 07.05.2018 are in general terms. The petitioner points out that the document in the possession of the Department is of the year 2004, whereas the enquiry relates to the period October 2012 to June 2017. The business activities and methods of doing business are likely to have changed over the years. There is also no reference, as rightly pointed out by Mr.Chopda, to the order of the CESTAT, dated 28.03.2018. However, the....
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....C are bad in law as there is no provision for giving the concerned parties an opportunity of being heard before an order is passed under the provisions of Section 269UD of the said Chapter for the purchase by the Central Government of an immovable property agreed to be sold in an agreement of sale. In this regard a plain reading of the provisions of the said Chapter clearly shows that they do not contain any provision for giving the concerned parties an opportunity to be heard before an order for compulsory purchase of the property by the Central Government is made. In connection with the requirement of opportunity of being heard before an order for compulsory purchase is made we find that somewhat similar questions have been considered by this Court on a number of occasions. In the case of Union of India v. Col. J.N. Sinha and Anr. : (1970)IILLJ284SC the facts were that the first respondent who was in the class-I service of the Survey of India and rose to the position of Deputy Director was compulsorily retired by an order under Rule 56(j) of the Fundamental Rules, no reasons were given in the order. Respondent No. 1 challenged the order on the ground that it violated principles o....
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....hud, C.J., went on to observe as follows:- It must further be presumed that, while vesting in the Commissioner the power to act without notice, the Legislature intended that the power should be exercised sparingly and in cases of urgency which brook no delay. In all other cases, no departure from the audi alteram partem rule ('Hear the other side') could be presumed to have been intended. Section 314 is so designed as to exclude the principles of natural justice by way of exception and not as a general rule. There are situations which demand the exclusion of the rules of natural justice by reason of diverse factors like time, place the apprehended danger and so on. The ordinary rule which regulates all procedure is that persons who are likely to be affected by the proposed action must be afforded an opportunity of being heard as to why that action should not be taken. The hearing may be given individually or collectively, depending upon the facts of each situation. A departure from this fundamental rule of natural justice may be presumed to have been intended by the Legislature only in circumstances which warrant it. Such circumstances must be shown to exist, when ....