TaxTMI 
TaxTMI 
TaxTMI 
2025 (6) TMI 16
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....consultation notice to the petitioners. 4. Brief facts of the case are as under. 4.1 The petitioner No. 1 is engaged in the business of construction, renovation or alteration of public roads. 4.2 During the financial year 2016-2017, petitioner No. 1 provided services of construction, renovation and alteration of public roads to the main contractor i.e. M/s JRA Infrastructure Limited and M/s PM Construction and total value of service provided amounts to Rs.4,46,66,920/-. 4.3 The main contractor deducted TDS on the aforesaid contract value under section 194C of the Income Tax Act (For short "the Act"). 4.4 It is the case of the petitioners that Rule 13(a) of the Notification No. 25/2012-ST dated 20.6.2012 issued in exercise of powers conferred under section 93 (1) of the Finance Act, 1994 granted unconditional exemption to the activities of construction, renovation or alteration of public roads irrespective of the fact whether it is provided as sub-contractor to the main contractor or directly to the Government. 4.5 It is the case of the petitioners that in view of unconditional exemption granted to the construction, renovation or alteration of public roads, the petitioners wer....
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....xceeds Rs.50 lakhs. It was therefore submitted that pre-consultation notice was mandatory to be issued by the respondents. Reliance was placed on the decision in the case of Dharamshil Agencies Vs Union of India, reported in 2021 (55) G.S.T.L. 516 (Guj.) wherein in similar facts, the show cause notice issued without pre-consultation was quashed and set aside. 7. It was therefore submitted that as per Circular No. 122/41/2019-GST dated 5.11.2019 along with circular No. 128/47/2019-GST dated 23.12.2019 which mandates adjudication of any of the communication sent to the tax payer, the communication issued without a valid DIN is said to be invalid. 8. It was submitted that in the impugned show cause notice issued by the respondent No. 2, there is no valid DIN and online search on the portal reveals that the same has been generated without indicating the Party Name, Party Address and also the document identifier and proper verification and therefore, it was not possible to find the party name and party address and also the petitioner could not retrive any document identifier so as to find the DIN for impugned show cause notice. 9. On the other-hand, learned advocate Mr. Param Shah fo....
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....tioner and after inquiry, it was noticed that the noticee had neither obtained Service Tax Registration nor filed ST3 returns even though Value of Income as per Income Tax Return was Rs. 4,46,66,920/- in FY 2016-17 and the same was also reflected in their 26AS. It was clearly shown that petitioner had suppressed the taxable value just to evade payment of Service tax. Accordingly, SCN was issued to recover the service tax involved in this case for the period of 2016-17 by invoking the extended period of five years under the proviso to Section 73 (1) of the Finance Act, 1994. (e) The contention raised in para 5(D) of the petition are denied and disputed in toto. It is respectfully submitted that any service except exempted service provided in taxable territory for consideration was chargeable to service tax under Section 66B of the Finance Act, 1994 till 30.06.2017. It is an undisputed fact that all types of transactions related to receipt/income during the FY are to be computed in the Income tax Return/Form 26AS as per the provisions of the Income Tax Act, 1961. Further, if a person is liable for paying service tax on the taxable value of services provided but has either not been ....
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....n from Service tax, It is required to be verified that the petitioner had provided service for construction of road which was constructed for the use of general public. The said inquiry can only be done after verification of various documentary evidences such as work order issued from the Government to the main contractor, copy of the agreement executed between parties and government authority, RA Bills etc. However, such documentary evidences are not produced by the petitioner before the adjudication authority and in absence of such documentary evidence, it would not have been possible to decide the case whether the exemption under Sr. 13(a) of Notification No. 25/2012-Service Tax dated 20.06.2012 was available to the petitioner or not. Further, it is a settled principle that the person who claims the exemption, the burden of proof is upon claimant. Therefore, the adjudicating authority had rightly decided the case as mentioned in OIO." 11. Learned advocate Mr. Param Shah therefore, summarized the contentions as referred to in paragraph (h) at page 177 as under. "(h) The contents of para 5(F) of the petition are denied and disputed in toto. It is respectfully submitted that as ....
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....ade mandatory prior to issue of show cause notice (SCN) in the case of demand of duty above Rs.50 Lakhs (except for preventive/offence related SCNS)" 2 Para 5.0 of the Master Circular No. 1053/02/2017-CX dated 10.03.2017 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, reiterated that pre-show cause notice consultation shall not be mandatory for these cases booked under the Central Excise Act, 1944 or Chapt....
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....n and in absence of the same the present proceedings could be said to be bad in law and deserves to be quashed and set aside. 85 (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 a....
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....the show cause notice. In the result, the writ petition is allowed, the impugned 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 5th 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 exci....
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....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 ingredients 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 interfered 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 Apex Court, the pro....