TaxTMI 
TaxTMI 
2026 (9) TMI 473
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.....11.2011, the Respondent/assessee, on the basis of an agreement/contract dated 01.04.2005 with M/s. United Breweries Ltd. (for short, "M/s. UBL"), manufactured and sold the alcoholic beverages to the customers/indenters of M/s. UBL, as per the instructions of M/s. UBL. The appellant claims that they gathered intelligence and started investigation in the year 2010 pursuant to which it has issued show-cause notice cum demand notice no. DGCEI/I&IS "D"/30-113/2012/11351 dated 19.12.2012 for Rs. 21,92,03,724/- alongwith interest under Section 75 of Ch.V of the Finance Act red with Sections 76,77 and 78 of the Finance Act. 3. The proceedings pursuant to the said show-cause notice cum demand notice were adjudicated by the appellant and vide Order-In-Original No. 21/ST/COMMR.2014 dated 30.04.2014, the appellant confirmed the Service Tax demand for the aforesaid amount with interest and the penalty as contemplated under Sections 77 and 78 of the Finance Act. Being aggrieved, by the said order the Respondent filed an appeal under Section 35B(1) of the Excise Act, before the Appellate Tribunal bearing Service Tax Appeal No. ST/88407/2014, which came to be allowed by the impugned order. Hen....
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....appellant accepted the judgment in the case of M/s. SAB Pvt. Ltd. whereas the same is challenged in the case of the Respondent. He therefore submits that, the revenue cannot take different stand when facts are almost identical. In support of his submission, he has relied on the following judgments : i) Birla Corporation Ltd. Vs. Commissioner of Central Excise reported in (2005) 6 SCC 95, ii) Union of India (UOI) and Ors. vs. Kaumudini Narayan Dalal and Ors. reported in (2001) 10 SCC 231. 7. On merits, learned counsel for the Respondent submits that the Appellate Tribunal has recorded findings of fact that the transaction between the Respondent and M/s. UBL prior to amalgamation was disclosed to the revenue and the amount of Service Tax for consideration of Rs. 5/- per case in relations to 'Intellectual Property Service' had already been paid. The said finding of fact is duly supported by the evidence on record and the correctness of the same is not under challenge. The same conclusion in the case of M/s. SAB Pvt. Ltd. has already been accepted by the appellant. 8. Learned counsel for the Respondent further submits that, the date of amalgamation w.e.f. 01.04.....
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....e against and instructed counsel as to what the fate of that appeal was or why no appeal was filed. It is not open to the Revenue to accept that Judgment in the case of the assessee in that case and challenge its correctness in the case of other assessees without just cause. For this reason, we decline to consider the correctness of the decision of the High Court in this matter and dismiss the civil appeal." 12. In the light of ratio laid down by the Hon'ble Apex Court in cases of Birla Corporation Ltd. (supra) and Kaumudini Narayan Dalal and Ors, (supra), we are of the considered view that the Principle of Consistency is sacrosanct in revenue matters and the revenue cannot be permitted to take different stand when the facts are almost identical, if they are permitted to do so the same would be contrary to the principles of fairness and equity. 13. So far as merit part is concerned, before adverting to the same, it would be apt to consider the provisions of Section 35G of the Excise Act which reads thus : "Section 35G. Appeal to High Court. - (1) An appeal shall lie to the High Court from every order passed in appeal by the Appellate Tribunal on or after the....
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....ed before the High Court, it shall be heard by a bench of not less than two Judges of the High Court, and shall be decided in accordance with the opinion of such Judges or of the majority, if any, of such Judges. (8) Where there is no such majority, the Judges shall state the point of law upon which they differ and the case shall, then, be heard upon that point only by one or more of the other Judges of the High Court and such point shall be decided according to the opinion of the majority of the Judges who have heard the case including those who first heard it. (9) Save as otherwise provided in this Act, the provisions of the Code of Civil Procedure, 1908 (5 of 1908), relating to appeals to the High Court shall, as far as may be, apply in the case of appeals under this section. 14. In short, the provision of Section 35G of the Excise Act, explicitly provides that an appeal against the order passed by the Appellate Tribunal would lie to this court, provided, it involves substantial question of law. 15. The only question that arises for consideration in this appeal is whether the appellant could have exhausted the extended period of limitation. In that regard....
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..... It was held: ...There is considerable force in this contention. If the department proposes to invoke the proviso to Section 11-A(1), the show-cause notice must put the Assessee to notice which of the various commissions or omissions stated in the proviso is committed to extend the period from six months to 5 years. Unless the Assessee is put to notice, the Assessee would have no opportunity to meet the case of the department. The defaults enumerated in the proviso to the said Sub-section are more than one and if the Excise Department places reliance on the proviso it must be specifically stated in the show-cause notice which is the allegation against the Assessee falling within the four corners of the said proviso.... (Emphasis supplied) 26. Hence, on account of the fact that the burden of proof of proving mala fide conduct under the proviso to Section 28 of the Act lies with the Revenue; that in furtherance of the same, no specific averments find a mention in the show cause notice which is a mandatory requirement for commencement of action under the said proviso; and that nothing on record displays a wilful default on the part of the Appellant, we hold....