TaxTMI 
TaxTMI 
2025 (2) TMI 561
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....ervice of notice of rule on behalf of the respondents. With the consent of learned advocates for the respective parties, the matters are taken up for the final hearing, as the issue involved is very short. 3. These petitions are filed challenging the show cause notice issued by the respondents -authorities without granting pre-consultation to the petitioners. 4. Pursuant to the order passed by this Court, the respondents-authorities granted the pre-consultation except in Special Civil Application No.1770 of 2022 and Special Civil Application No. 3845 of 2022. 5. This Court passed the following order on 27th September, 2023:- 1. Heard learned advocate Mr. Anand Nainawati for the petitioners, learned advocate Mr. Priyank P. Lodha and learned advocate Mr. Nikunt K. Raval for the respective respondents. 2. The principal grievance raised in this petition is not abiding by the requirement of the pre-show cause notice consultation as provided in Master Circular dated 10th March, 2017, as demand of duty involves more than Rs. 50,00,000/-. 3. The impugned show-cause notice/order in original in this petition is issued without following the mandatory requir....
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....rns (Pg. 26 of petition) SCA No. 5467 of 2022 Ishmail Jusab Jat Granted SCN issued based on difference in value of income as per FORM 26AS and as per form ST-3 returns (Pg. 24 and 25 of petition) SCA No. 5504 of 2022 Jat Stone Crushing Granted Not filed SCN issued based on difference in value of income as per FORM 26AS and as per form ST - 3 returns (Pg. 27 and 28 of petition) SCA No. 5685 of 2022 Gatral Enterprise Granted Filed SCN issued based on difference in value of income as per FORM 26AS and as per form ST - 3 returns (Pg. 35 of petition) 8. In Special Civil Application No.5685 of 2022, the respondents-authorities have placed on record the outcome of the pre-consultation provided to the petitioner by filing an affidavit dated 13th September, 2024 . 9. On perusal of the outcome of the pre-consultation, it appears that considering the submissions made by the petitioners of Special Civil Application No.5685 of 2022, the respondent-Joint Commissioner, CGST & Central Excise, Rajkot opined that the contentions of the petitioners that they are eligible for exemption under Sr.No.12(a) of the Notification No. 25/2012-ST that o....
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.....2017 merely reiterates the principle of pre-show cause notice consultation enunciated vide aforementioned Instruction dated 21.12.2015. Further, vide Circular No. 1076/02/2020-CX dated 19.11.2020, it was clarified that "Pre-show cause notice consultation with assessee, prior to issuance of SCN in case of demand of duty is above Rs.50 Lakhs (except for preventive/offence related SCNs) is mandatory & shall be done by the Show cause notice issuing Authority", 3. Subsequent to this, a reference has been received from the DGGI to clarify whether DGGI formations fall under the exception/exclusion category of the CBIC's instruction supra dated 21.12.2015 or otherwise. 4. In this regard, it is hereby clarified that exclusion from pre-show cause notice consultation is case-specific and not formation specific 5. It is, therefore, retterated that pre-whow cause notice consultation shall not be mandatory for thuse cases booked under the Central Excise Act, 1944 or Chapter V of the Fosance Act, 1994 for recovery of Buties or taves not levind or paid or short levted or short pald or erroneously refunded by reason of (a) fraud, or (b) collusion, o....
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....5 (i) Amadeus India Pvt Ltd Vs. Principal Commissioner - 2019-TIOL-1027-HC-DEL-ST 12. It will be immediately noticed that there are two exceptions carved out for the Respondent to engage in a pre-SCN consultation. The first is that the SCN is preventive and the second is that it is related to an offence in terms of the Finance Act, 1994. 13. In the present case, as is evident from the impugned SCN, the alleged non-payment of service tax pertains to period between 2012-2013 to 2016-2017. Consequently, there is no 'preventive' aspect involved in the SCN and this is not even disputed by learned counsel for the Respondent. However, what is urged before the Court by the Respondent is that since the SCN was preceded by a search that was conducted in the business premises of the Petitioner, and the Petitioner also rendered itself liable for penal action 'for suppression of facts and contravention of various statutory provisions with intent to evade payment of due service tax' and other incidental levies, the SCN partakes of the character of an 'offence related' SCN and therefore falls within the exceptions carved out under para 5.0 of the Master C....
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....ned notice is set aside and the matter is remanded to the fourth respondent, for fresh consideration. The fourth respondent is directed to afford an opportunity of personal hearing to the authorized representative(s) of the petitioner, consider the reply given by the petitioner dated 16-12-2016 to the Audit Slip and after affording full and effective opportunity, consider the case and then proceed in accordance with law. No costs. Consequently, connected miscellaneous petition is closed. 86. The above judgement of the Delhi High Court in Amadeus (Supra)also negatives the stance taken in the reply affidavit dated 5 th March 2021 of the respondents, wherein, it has been urged by the Respondent that the offence/preventive cases are outside the purview of the procedure relating to the pre-show cause consultation. 87 It would be appropriate at this stage to reproduce the relevant provisions of Sub-sections (1) and (4) of Section 11A of the Excise Act and they are as follows: "11A. Recovery of duties not levied or not paid or short-levied or short-paid or erroneously refunded.- (1) Where any duty of excise has not been levied or paid or has been short-....
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....ty of service tax upon interpretation of the provisions of the Finance Act, 1994 read with various Notifications in relation to the issues as to whether the petitioner of the said petition constructed the roads for the general public or the private road and labour charges, TTA Charges, taxation which does not contain any of the ingreadients of the fraud, wilful mis-statement for separation of facts for collusion which would categorize such show cause notice in the exception curved out in para 5 of the Circular No 1079 of 2021. 14. In view of the facts of the case being squarely covered by the decision of this Court in the case of L AND T Hydrocarbon Engineering Ltd. (Supra) wherein the reliance is also placed on the decision of the Hon'ble Delhi High Court in case of Amadeus India Pvt. Ltd. Vs. Principal Commissioner of Central Excise Services Tax & Central Tax reported in 2019(25) G.S.T.L (Del.) wherein, so far as the merits of the matter is concerned, the Hon'ble Apex Court has not interefered and issued the notice in SLP only for the purpose of as to whether the respondents are entitled to issue reviving of earlier show cause notice or not ? The order passed by the Hon'ble Ap....