TaxTMI 
TaxTMI 
2022 (3) TMI 1615
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....nance Act, 1994. It is alleged by the opposite party-Adjudicating Authority that from the data obtained from the Income Tax Department it is revealed that the Petitioner having received considerable amount from different service recipients has made neither full disclosure of the amount in the returns in Form ST-3 nor has it filed the returns in Form ST-3 for certain period; thereby, it has evaded payment of service tax. The Adjudicating Authority proposed to proceed with determination of tax, interest and penalty for the periods 2015-16 and 2016-17 and therefore, he issued Demand-cum-Show Cause Notice dated 22.04.2021 calling upon the Petitioner to produce evidence to rebut the following:- "*** *** *** *** *** 6.0 Now, therefore the noticee, i.e. M/s. Nagen Caterer, at Samanta Sahi, P.O.: Buxibazar, Cuttack- 753001, bearing Service Tax Registration No. AAAAN1310KSD002 is called upon to Show Cause to the Additional Co....
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....e authorities with in eighteen months from the relevant date, and since the case does not fall with in the ingredients mentioned under proviso thereto, the extended period of limitation does not get attracted in the present context. 5. It is the further case of the Petitioner that there is illegality in issuance of Demand-cum-Show Cause Notice dated 22.04.2021 as the authority concerned has not considered the effect of Order dated 06.04.2021 of this Court in the case of the Petitioner's own case being Nagen Caterer Vrs. Central Board of Indirect Taxes & Customs & others, W.P.(C) No.24377 of 2020. Mr.Tushar Kanti Satapathy, counsel for the Petitioner placing reliance on the following paragraphs of the said order submitted that the assessing authority is precluded from raising demand which stood concluded by virtue of direction to issue SVLDRS-4 under Sabka Viswas Legacy Dispute Resolution Scheme, 2019 (SVLDRS):- "17. As far as the second writ petition filed by NC is concerned, in the counter affidavit again there is no explanation why the Designated Committee issued SVLDRS-2 and SVLDRS-2A without issuing SVLDRS-3. It is also not in dispute that the pre- deposit amount in....
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.... Notice this Court need not exercise extraordinary jurisdiction under Article 226 of the Constitution of India. It is stated that in as much as the decisions cited and relied upon by the counsel for the Petitioner are in the connection with different setting of language in the statute compared to the Finance Act, 1994, they have no material bearing on the present facts and circumstances of the matter. 7. Heard Sri Tushar Kanti Satapathy, learned Advocate for the Petitioner and Sri. Choudhury Satyajit Mishra, Senior Standing Counsel. 8. Provisions for levy and imposition of service tax were introduced vide Chapter V in the Finance Act, 1994 and have been amended from time to time. Service tax does not have a separate enactment like the Central Excise Act, 1944, the Customs Act, 1962 or the Income Tax Act 1961. Section 65B of the Finance Act which deals with interpretation vide clause (55) states as follows: "(55) words and expressions used but not defined in this Chapter and defined in the Central Excise Act, 1944 (Act 1 of 1944) or the rules made thereunder, shall apply, so far as may be, in relation of service tax as they apply in relation to a duty of excise." E....
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....ce on such person, subject to the condition that the grounds relied upon for the subsequent period are same as are mentioned in the earlier notices. (1B) Notwithstanding anything contained in sub-section (1), in a case where the amount of service tax payable has been self-assessed in the return furnished under sub- section (1) of section 70, but not paid either in full or in part, the same shall be recovered along with interest thereon in any of the modes specified in section 87, without service of notice under sub-section (1). (2) The Central Excise Officer shall, after considering the representation, if any, made by the person on whom notice is served under sub-section (1), determine the amount of service tax due from, or erroneously refunded to, such person (not being in excess of the amount specified in the notice) and thereupon such person shall pay the amount so determined : (2A) Where any appellate authority or tribunal or court concludes that the notice issued under the proviso to sub-section (1) is not sustainable for the reason that the charge of,- (a) fraud; or (b) collusion; or (c) wilful misstatement; or (d....
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....ax has not been levied or paid or has been short-levied or short-paid or erroneously refunded by reason of - (a) fraud; or (b) collusion; or (c) wilfulmis-statement; or (d) suppression of facts; or (e) contravention of any of the provisions of this Chapter or of the rules made thereunder with intent to evade payment of service tax. (4A) * * * *** *** *** (4B) The Central Excise Officer shall determine the amount of service tax due under sub-section (2)- (a) within six months from the date of notice where it is possible to do so, in respect of cases falling under sub-section (1); (b) within one year from the date of notice, where it is possible to do so, in respect of cases falling under the proviso to sub-section (1) or the proviso to sub-section (4A). (5) The provisions of sub-section (3) shall not apply to any case where the service tax had become payable or ought to have been paid before the 14th....
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....cts or contravention of any of the provisions of Chapter V of the Finance Act or Rules framed thereunder with the intent to evade payment of tax. Thus, as per Section 73, unless payment is made in terms of sub-sections (3) and (4) there of, the proceedings for assessment would commence by issue of the show cause notice under sub-section (1) of Section 73 of the Finance Act. This is the procedure prescribed by the statute for recovery of service tax in cases of non- levy, non-payment, short levy, short payment and erroneous refund. Section 83 Chapter V of the Finance Act, 1994 empowers the Authority to invoke Section 14 of the Central Excise Act, 1944 which empowers the Officer to issue summons to any person to give evidence and produce documents. The summons can be issued to any person whose attendance the officer considers necessary. The power can be exercised to collect evidence or a document or any other thing in any inquiry which the officer is making for any purposes under the Act. Perusal of the impugned notice vide Annexure-1 to the writ petition shows that it contains reasons for issue of notice and it specifies the amount for which recovery proceedings have been i....
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....questions of fact inter alia as to: i. Whether the transactions under impugned Show Cause Notice were disclosed in the returns with complete material particulars and/or transactions remained undisclosed as returns being not filed? ii. Whether total period of 2015-16 and 2016-17 would fall within the scope of normal period of limitation under Section 73(1) or would be embraced within the fold of proviso thereto? iii. Whether the amounts received and shown in the income-tax returns do relate to service tax vis-à-vis records that would be produced and/or evidence adduced by the Petitioner? iv. Whether the transactions (partly or wholly) which were considered under the SVLDRS, 2019 as reflected in the Order dated 06.04.2021 of this Court in the case of present Petitioner in W.P.(C) No.24377 of 2020 are covered in the subject-matter of impugned Show Cause Notice relating to 2015-17 (two financial years)? These are illustrations of questions of fact which may crop up along with any other factual aspects during the process of adjudication under Section 73 of the Finance Act. Furthermore, it has been held in Ramesh B Desai Vrs. Bipin Vadilal Me....
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....de out a strong case or that there exist good grounds to invoke the extraordinary jurisdiction. 12. Constitution Benches of this Court in K.S. Rashid and Son v. Income Tax Investigation Commission [1954 SCR 738 : AIR 1954 SC 207] , Sangram Singh v. Election Tribunal, Kotah [(1955) 2 SCR 1 : AIR 1955 SC 425], Union of India v. T.R. Varma [1958 SCR 499 : AIR 1957 SC 882] , State of U.P. v. Mohd. Nooh [1958 SCR 595 : AIR 1958 SC 86] and Venkataraman and Co. v. State of Madras [(1966) 2 SCR 229 : AIR 1966 SC 1089] held that Article 226 of the Constitution confers on all the High Courts a very wide power in the matter of issuing writs. However, the remedy of writ is an absolutely discretionary remedy and the High Court has always the discretion to refuse to grant any writ if it is satisfied that the aggrieved party can have an adequate or suitable relief elsewhere. The Court, in extraordinary circumstances, may exercise the power if it comes to the conclusion that there has been a breach of principles of natural justice or procedure required for decision has not been adopted. 13. Another Constitution Bench of this Court in State of M.P. v. Bhailal Bhai [(1964) 6 SCR 26....
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....2) SCC 312] , Whirlpool Corpn. v. Registrar of Trade Marks [(1998) 8 SCC 1 : AIR 1999 SC 22] , Tin Plate Co. of India Ltd. v. State of Bihar [(1998) 8 SCC 272 : AIR 1999 SC 74] , Sheela Devi v. Jaspal Singh [(1999) 1 SCC 209] and Punjab National Bank v. O.C. Krishnan [(2001) 6 SCC 569] this Court held that where hierarchy of appeals is provided by the statute, the party must exhaust the statutory remedies before resorting to writ jurisdiction. 16. If, as was noted in Ram and Shyam Co. v. State of Haryana [(1985) 3 SCC 267 : AIR 1985 SC 1147] the appeal is from 'Caesar to Caesar's wife' the existence of alternative remedy would be a mirage and an exercise in futility. ... There are two well- recognized exceptions to the doctrine of exhaustion of statutory remedies. First is when the proceedings are taken before the forum under a provision of law which is ultra vires, it is open to a party aggrieved thereby to move the High Court for quashing the proceedings on the ground that they are incompetent without a party being obliged to wait until those proceedings run their full course. Secondly, the doctrine has no application when the impugned order has been made in violatio....
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....il, Khurai v. Kamal Kumar [AIR 1965 SC 1321 : (1965) 2 SCR 653] , Siliguri Municipality v. Amalendu Das [(1984) 2 SCC 436 : 1984 SCC (Tax) 133] , S.T. Muthusami v. K. Natarajan [(1988) 1 SCC 572] , Rajasthan SRTC v. Krishna Kant [(1995) 5 SCC 75 : 1995 SCC (L&S) 1207 : (1995) 31 ATC 110] , Kerala SEB v. Kurien E. Kalathil [(2000) 6 SCC 293] , A. Venkatasubbiah Naidu v. S. Chellappan [(2000) 7 SCC 695] , L.L. Sudhakar Reddy v. State of A.P. [(2001) 6 SCC 634] , Shri Sant Sadguru Janardan Swami (Moingiri Maharaj) Sahakari Dugdha Utpadak Sanstha v. State of Maharashtra [(2001) 8 SCC 509] , Pratap Singh v. State of Haryana [(2002) 7 SCC 484 : 2002 SCC (L&S) 1075] and GKN Driveshafts (India) Ltd. v. ITO [(2003) 1 SCC 72] .] *** *** *** *** 15. Thus, while it can be said that this Court has recognised some exceptions to the rule of alternative remedy i.e. where the statutory authority has not acted in accordance with the provisions of....
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....ullity and not executable and a decree of the court which is merely illegal or not passed in accordance with the procedure laid down by law. A decree suffering from illegality or irregularity of procedure, cannot be termed inexecutable." 17. The Constitution Bench of the Hon'ble Supreme Court of India in the case of Central Potteries Ltd. v. State of Maharashtra, (1963) 1 SCR 166 : AIR 1966 SC 932 : (1962) 13 STC 472 held as follows: "7. In this connection it should be remembered that there is a fundamental distinction between want of jurisdiction and irregular assumption of jurisdiction, and that whereas an order passed by an authority with respect to a matter over which it has no jurisdiction is a nullity and is open to collateral attack, an order passed by an authority which has jurisdiction over the matter, but has assumed it otherwise than in the mode prescribed by law, is not a nullity. It may be liable to be questioned in those very proceedings, but subject to that it is good, and not open to collateral attack. Therefore even if the proceedings for assessment were taken against a non-registered dealer without the issue of a notice under Section 10(1) that would b....
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....etition, more so, when against the final orders appeal lies to this Court. The judgment of this Court in the case of Union of India v. Guwahati Carbon Ltd., (2012) 11 SCC 651 : 2012 SCC OnLine SC 210 relied on by the learned senior counsel for the appellants also supports their case. In the aforesaid judgment, arising out of Central Excise Act, 1944, this Court has held that excise law is a complete code in order to seek redress in excise matters and held that entertaining writ petition is not proper where alternative remedy under statute is available. When there is a serious dispute with regard to classification of service, the respondents ought to have responded to the show cause notices by placing material in support of their stand but at the same time, there is no reason to approach the High Court questioning the very show cause notices. Further, as held by the High Court, it cannot be said that even from the contents of show cause notices there are no factual disputes. Further, the judgment of this Court in the case of Malladi Drugs & Pharma Ltd. v. Union of India, (2020) 12 SCC 808 : 2004 SCC OnLine SC 358, relied on by the learned senior counsel for the appellants also suppo....
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....he merits of the case." 22. In an identical case relating to writ petition questioning the show cause notice relating to service tax under the Finance Act, 1994, viz. Bhubaneswar Development Authority Vrs. Commissioner of Central Excise, 2015 SCC OnLine Ori 53 this Court observed as follows: "5. After hearing the learned counsel for the respective parties, it would be relevant herein to take note that the judgment of the Hon'ble Supreme Court in the case of Collector of Central Excise, Hyderabad v. M/s. Chemphar Drugs and Liniments, Hyderabad, (1989) 2 SCC 127 and in particular, Para-9 thereof is quoted as hereunder: "9. *** In order to make the demand for duty sustainable beyond a period of six months and up to a period of 5 years in view of the proviso to sub-section (1) of Section 11-A of the Act, it has to be established that the duty of excise has not been levied or paid or short-levied or short-paid, or erroneously refunded by reasons of either fraud or collusion or willful misstatement or suppression of facts or contravention of any provision of the Act or Rules made thereunder, with intent to evade payment of duty. Something positive other than mere ina....
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.... (2010) 11 SCC 593, the Hon'ble Supreme Court after taking note of earlier case being Sales Tax Officer, Ganjam Vrs. Uttareswari Rice Mills, (1973) 3 SCC 171 : 1973 SCC (Tax) 123, wherein challenge was made to Show Cause Notice, has been pleased to make the following observation: "14. In our considered opinion, the ratio of the aforesaid decision in Uttareswari Rice Mills case [(1973) 3 SCC 171 : 1973 SCC (Tax) 123] of this Court is squarely applicable to the facts of the present case. The expression used in Section 11-E of the Act is that the Commissioner must be satisfied on information or otherwise that the registered dealer has furnished incorrect statement of his turnover or furnished incorrect particulars of his sale in the return. A show- cause notice is issued to the dealer with the purpose of informing him that the Department proposes to reopen the assessment because the Commissioner himself is satisfied that the dealer has furnished incorrect statement of his turnover or incorrect particulars of his sales in the return submitted, so as to enable the dealer to reply to the show-cause notice as to why the said power vested in the Commissioner should not be exercise....
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....use notice under Section 11-A also has some significance in the eye of the law. The day the show-cause notice is issued, becomes the reckoning date for various issues including the issue of limitation. If we accept the submission of the respondent that a prima facie view entertained by the department whether the matter requires to be proceeded with or not is to be taken as a decision or determination, it will create an imbalance in the working of various provisions of Section 11-A of the Act including periods of limitation. It will be difficult to reckon as to from which date the limitation has to be counted." 25. In aforesaid Judgment being CCE Vrs. Krishna Wax (P) Ltd., (2020) 12 SCC 572 : 2019 SCC OnLine SC 1470 the Hon'ble Supreme Court in clear voice assigned reason as follows: "13. It must be noted that while issuing a show-cause notice under Section 11-A of the Act, what is entertained by the Department is only a prima facie view, on the basis of which the show-cause notice is issued. The determination comes only after a response or representation is preferred by the person to whom the show-cause notice is addressed. As a part of his response, the person concerne....