TaxTMI 
TaxTMI 
2022 (8) TMI 10
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.... filing the instant appeal. 2. We have heard Mr. Vipul Kundalia, learned counsel appearing for the appellant and Mr. Rajeev Kumar Agarwal, learned counsel appearing for the respondent. 3. We have perused the affidavit filed in support of the petition but we are not fully convinced with the reasons cited therein. However, we briefly heard the learned senior Standing Counsel for the appellant as well as Mr. Agarwal, learned Advocate for the respondent and we found that the correct legal position was required to be stated in this appeal or else the order may become a wrong precedent. Therefore, we exercise discretion and condone the delay in filing the appeal. 4. Accordingly, the delay in filing the instant appeal is condoned. 5. The appli....
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....e observation made by the learned Single Bench in the earlier writ petition, the show cause notice was quashed with liberty to the appellant to act in accordance with the order dated November 20, 2014 passed in W.P. No.48 of 2014. Aggrieved by the same, the department is before us. 9. After we have elaborately heard the learned Advocates for the parties, we are of the considered view that the finding rendered by the learned Writ Court in the earlier writ petition in W.P. No.48 of 2014 dated 20th November, 2014 does not reflect the correct legal position. Section 73 of the Finance Act, 1994 deals with recovery of service tax not levied or paid or short-levied or short-paid or erroneously refunded. Sub-Section (1) of Section 73 states that w....
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.... in W.P. No. 48 of 2014 and holding that it does not reflect the correct legal position. 12. The learned single Bench in the earlier order, which we have quoted above, has stated that the department has an obligation to determine whether the writ petitioner is receiving support service from the Government and it is only thereafter a show cause notice can be issued. This finding rendered by the learned Writ Court is contrary to section 73 of the Act and therefore, the same does not reflect the correct legal position. 13. In the light of the above, the order passed by the learned single Bench quashing the show cause notice is not tenable and accordingly, the appeal stands allowed. The application (I.A. No. CAN 2 of 2022) stands disposed of.....