2026 (7) TMI 1281

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....eard Mr. SC Keyal, the learned Senior Counsel, as well as Standing Counsel, CGST assisted by Mr. K Jain, the learned counsel, who appears on behalf of the respondent Nos. 2, 3 and 4. 2. The present petition has been filed by the petitioner challenging the Order-in-Original bearing No. 26/JC/ADJ/ST/COMMR/DIB/2022-23 dated 24.03.2023 (hereinafter referred to as 'the impugned order') solely on the ground that the said impugned order was passed by the respondent No. 3 without issuance of notice as is mandatorily required under Section 73(1) of the Finance Act 1994. BRIEF FACTS OF THE CASE: 3. The petitioner herein is a partnership firm registered under the Finance Act 1994, and was issued a registration number bearing service tax regis....

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....e filed their affidavit-in-opposition. In the said affidavit-in-opposition, the respondents have categorically stated various aspects on merits. But taking into consideration that the sole ground on which the present writ petition has been filed i.e. non-service of notice under Section 73(1) of the Finance Act 1994, it is relevant to take note of paragraph No. 12 of the said affidavit-in-opposition, wherein it is mentioned that the show cause notice dated 07.10.2021 was issued to the petitioner and was served through speed post bearing consignment No.ES882582409IN. However, it is relevant to take note of that though it is mentioned that the service of the show cause notice was made through speed post, neither the tracking information tha....

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....show cause why the noticee, should not pay the amount specified in the notice. The first proviso to sub-section (1) of Section 73 stipulates that in respect to cases where any service tax have not been levied or paid, or has been short-levied or short-paid, or erroneously refunded by reason of fraud or collusion or willful misstatement or suppression of facts or contravention of any of the provisions of Chapter V of the Finance Act, 1994 or the Rules made therein under with an intent to evade payment of service tax by the person chargeable with service tax or his agent, the provisions of subsection shall have effect as if the words '30 months' which have been mentioned in the main sub-section (1) of Section 73 shall stand substituted by the....

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....nts that the petitioner is trying to escape from payment of service tax from their end by suppressing the material facts from the Department with an intention to evade payment of service tax, and, therefore, had employed the first proviso to Section 73(1) of the Finance Act, 1994, whereby the period of limitation for issuance of the show cause notice stood extended by 5(five) years from the relevant date. 13. Considering that the respondents completely failed to prove that the show cause notice was served upon the petitioner or even issued to the petitioner, the impugned Order-in-Original dated 24.03.2023 cannot be sustained in law. 14. Taking into consideration that the petitioner had assailed the impugned Order-in-Original dated 24.....