TaxTMI 
TaxTMI 
2022 (8) TMI 993
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....he application within the period of limitation. 3. Accordingly, the application for condonation of delay being IA No. GA/1/2013 is allowed and the delay in filing the application is condoned. 4. This appeal by the revenue is directed against the order in WP No. 124 of 2011 dated 10.08.2011. The said writ petition was filed by the respondent challenging a show cause notice issued by the appellant department dated 30.03.2010 demanding service tax for the period 2004-2005. By the impugned order, the writ petition has been allowed and aggrieved by such order the appellant department has filed the instant appeal. 5. We have elaborately heard Mr. K.K. Maity, Learned Senior Standing Counsel for the appellant department and Mr. J. K. Mittal, Learned Counsel assisted by Mr. Paritosh Sinha, Mr. Amitava Mitra, and Ms. Antara Chowdhury, learned advocates for the respondent. 6. The show cause notice which was impugned in the writ petition demanded a total service tax of Rs. 1,10,08,867/-. The break up details of the same are under three heads:- (i) Rendering of service to M/s. Tisco for getting coal converted to coke, (ii) intra court transportation of ores in term....
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....the Court would not be justified in dismissing the writ petition at the initial stage without examining the contentions raised in the writ petition that the show cause notice was without jurisdiction. Further taking note of the decision of the Hon'ble Supreme Court in State of Punjab Versus Bhatinda District Cooperative Milk P. Union Limited (2007) 11 SCC 363 the court held that the question of limitation being a jurisdictional question, a writ petition challenging the validity of the notice on the ground of the same being barred by limitation would be maintainable not withstanding an alternate statutory remedy. Further the learned Writ Court referred to the decision of the Hon'ble Supreme Court in State of Madhya Pradesh and Others Versus D. K. Yadav AIR 1968 SC 1186 for the proposition that a Writ Court would be entitled to examine whether the jurisdictional facts are correct or not. With the above reasoning the Court held that the writ petition was maintainable. Having held so, the Court then proceeded to examine the second contention raised by the writ petitioner that the show cause notice was barred by time and the ingredients required to be fulfilled for invoking the extended....
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....etitioner was neither a port nor had been authorized by any port and the service rendered by the petitioner did not constitute port service. The petitioner also filed a writ petition being W.P. (c) No. 6660 of 2007 challenging the letter dated 9th March, 2007. By an audit spot Memo No. 3 dated 21st July, 2009, the Principal Director of Audit, Central Kolkata, sought information and/or documents with regard to intra port charges from 2001-2002 to 2008-2009. Another memo being Audit Spot Memo No. 3 dated 21st June, 2009 was issued by the Audits and Accounts Department, calling for documents pertaining to intra port transportation, conversion bill charges and transportation bills for the year 2001-2002 to 2008-2009. Thereafter while conducting audit, the office of the Principal Director of Audit issued audit spot Memo No. 02 dated 21st July, 2009 calling for documents related to processing of 'pyroxenite' Service tax is apparently being paid on processing of 'pyroxenite' with effect from 1st June, 2007 was made applicable to when service tax 'mining service', under Section 65(105) zzzy of the Finance Act, 1994. According to the petitioner, the petit....
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....time to time does not itself attract the proviso to Section 73 (1) of the Act as for invocation of the extended period of limitation, the contravention must be coupled with intent to evade the payment of service tax. After referring to several other decisions of the Hon'ble Supreme Court, it was pointed out that it is not the case of the department as made out in the show cause notice that the writ petitioner has withheld any information in spite of requisitions or has refrained from filing returns in spite of any specific directions to do so. After having held so, Writ Court also took note of the submissions made by the learned advocates for the writ petitioner that conversion of coal into coke does not attracts service tax and even if conversion did not amount to manufacture and was covered under "Business Auxiliary Service", Notification No. H/05-ST dated 09.03.2005 exempted processing or production of goods for or on behalf of the clients from service tax and therefore the writ petitioners was exempt under the aforesaid notification. The Court also took note of the arguments of the learned advocate for the respondent that intra court transportation constitute port service with ....
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.... it is submitted that the show-cause notice which was impugned in the writ petition is not a show-cause notice which was issued pursuant to the search and seizure operation conducted on 18.04.2006 but it was pursuant to an audit which was conducted and the audit report appears to have been the basis for the show-cause notice. It is submitted that if proceedings are initiated pursuant to an audit, the Central Board of Excise and Customs has issued various circulars which are in the nature of guidelines referring the functions of the Audit Commissionerates and in this regard, referred to circular No. 985/09/2014-CX dated 22nd September, 2014 and has drawn out attention to Clauses 5.1, 5.2, 5.3 and 5.9 of the said circular to explain the procedure that has to be followed and when an audit is conducted, show-cause notice is to be issued by the Audit Commissionerate. That apart the assessee is entitled to an opportunity. It is further submitted that the circular No. 1053/202/2014-CX dated 10.03.2017 was issued which is a master circular on show-cause notice, adjudication and recovery. This master circular rescinds several circular issued from 1980 onwards except 3 circulars and in Parag....
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.... was not maintainable, it will be too harsh on the assessee to be relegated back to the authority to respond to the show-cause notice. Therefore, the first issue is decided in favour of the respondent writ petitioner. 14. The second issue was as to whether the extended period of limitation could have been invoked. If the issue is answered in favour of the writ petitioner, there may not be a necessity to go into the third issue. As rightly pointed out by the learned Writ Court, the proviso to Section 73(1) of the Act can be invoked only when there is an allegation of fraud or collusion or wilful mis-statement or suppression of facts or contravention of the provisions of the Act or the Rules with intent to evade payment of service tax. Therefore, the show-cause notice should clearly indicate the wilful mis-statement or suppression of facts or fraud or collusion as done by the assessee with an intention to evade payment of tax. On a careful reading of the show-cause notice, it is evidently clear that there is absolutely no whisper of any allegation of wilful mis-statement or suppression of facts or fraud or collusion as committed by the respondent assessee with an intention to evad....
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....fully satisfied that the appellant Department could not have invoked the extended period of limitation for issuance of the show-cause notice. With regard to the effect of the judgment of APO 332 of 2009 dated 08.02.2010 we have to point out that the said decision can have no impact in the present case as the appellant therein was a partnership firm and the respondent writ petitioner herein is a Private Limited company. In any event, we tested the correctness of the submissions of Mr. K.K. Maity who had submitted that the Hon'ble Division Bench had granted 3 months time for the Department to proceed in accordance with law and within the said 3 months period the show-cause notice dated 30.03.2010 was issued. Firstly, the said decision cannot be applied to the fact of the case on hand as the appellant therein was a different entity, secondly the Court did not grant any direction extending the period of limitation which the Court was not entitled to do. The period of 3 months was only with regard to the refund of Rs. 15,00,000/- it was directed to be given. The Hon'ble Division Bench held that the amount of Rs. 15 lakhs on being refunded shall be kept by the appellant therein in a shor....