TMI Blog2018 (11) TMI 714X X X X Extracts X X X X X X X X Extracts X X X X ..... nsolidated show cause notices even on divergent issues and subject matters. In addition, because of delay and limitation period prescribed under Section 73(1) of the Fin Act recoveries could lapse. Pendency of proceeding of recovery under Section 73(1) of the Fin Act or any other statutory proceedings is not a condition precedent for issue of notice under Section 14 of the CE Act. Notice or summons under Section 14 of the CE Act can be issued by the Central Excise Officer when required and necessary for any enquiry relating to service tax. Rule 5A no doubt vests and authorises the Central Excise Officers with power to access registered premises of a person for scrutiny, verification and check but this would not show that the Central Excise Officer does not have power and cannot take recourse to investigation and issue summons for collection of evidence and documents under Section 14 of the CE Act. The power conferred in the form of Section 14 of the CE Act, like conduct of Special Audit under Section 72A or access to the registered premises under Rule 5A(1) have the same object and purpose i.e. empower the Central Excise Officer to ascertain facts and also collect material an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the said person or assessee is registered with one or multiple Commissionerates. Notice under Section 14 of the CE Act i.e. Central Excise Act can be issued even if proceedings under Section 73 of the Fin Act i.e. Finance Act, 1994 are not pending. However the notice should relate to matters and issues relating to provisions of services and imposition of service tax - The petitioner should comply with the notices issued or would be issued by the Central Excise Officers, DGCEI to furnish evidence and documents pertaining to the PMC charge i.e. Project Management Consultancy Charge in respect of Commissionerate/ registration except those subject matter of show cause notice dated 13th March, 2015 issued by the Commissionerate of Central Excise and Service Tax, Patna. Petition dismissed. - W.P.(C) 1144/2016 - - - Dated:- 16-11-2018 - MR. SANJIV KHANNA AND MS. PRATHIBA M. SINGH JJ. Petitioner Through: Mr. J.K. Mittal and Mr. Rajeev Singh, Advocates. Respondents: Through Mr. K. Radha Krishnan, Sr. Advocate with Mr. Rupesh Kumar, Mr. Satish Agarwala Mr. Pritpal Singh Nijjar, Advocates for respondent Nos. 1 to 3. SANJIV KHANNA, J. National Building Constructio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ice tax under the exemption Notification No.25/12-ST, which was qualified and restricted to contract services for construction of government buildings. The petitioner vide letter dated 20th October, 2014 has contested the allegation stating that the PMC Charges were exempt under Notification No.25/12-ST as they were a part and parcel of construction services undertaken for the government, governmental authority or local authority and were bundled services as per the terms of Section 66F(3) of the Finance Act, 1994 (Fin Act, for short). A number of letters were thereafter exchanged between the petitioner and the Commissionerate. We must clarify that interpretation and scope of the Notification No.25/12-ST is not directly the issue raised and pressed for adjudication in the present Writ Petition. Scope and ambit of this notification is not being decided and adjudicated. 7. Similarly, the Commissioner of Central Excise and Service Tax, Patna has issued demand-cum-show cause notice dated 13th March, 2015 for recovery of Service Tax, Education Cess and Secondary and Higher Education Cess of ₹ 8,71,01,927/- on payments received by the petitioner for rendering service in the natu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... law. Rule 5A(1) of the Service Tax Rules,1994 (the Rules, for short) permits an officer authorized by the Principal Commissioner or Commissioner to have access to any premises registered under the Rules for purpose of scrutiny, verification and check. Special Audit can be directed under Section 72A of the Fin Act. These are the only prescribed and authorised methods by which details and documents can be summoned and statements recorded, when proceeding under Section 73 of the Fin Act have not been initiated. Further a Senior Intelligence Officer in the DGCEI, whose rank is that of Superintendent, cannot conduct an inquiry except in cases of nominal value of upto ₹ 1,00,000/-. As per Section 12E of the CE Act, which applies in terms of Section 83 of the Fin Act to service tax proceedings, a senior officer can exercise power of subordinate officer and not vice versa. As per Sub-section (2) to Section 12E, Principal Commissioner of Central Excise or Commissioner of Central Excise (Appeals) is authorized to exercise power under Section 14 of the CE Act i.e. issue summons. 10. As per the petitioner, the following legal issues arise for consideration in the present writ petit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al of Central Excise Intelligence ('DGCEI') (whose Assistant Director is impleaded as Respondent No. 3) is entirely without jurisdiction. In particular, it is pointed out that the Petitioner, which essentially is undertaking projects of civil works and construction for various departments of the government and other PSUs, and which has 88 service tax registrations under the Finance Act 1994 (FA) is being issued notices by the various Commissionerates of Service Tax (ST)at Delhi, Allahabad, Patna, Noida, etc. While the Petitioner is contesting those proceedings separately, it has been asked by the Meerut Regional(which has become a Zonal unit since July 2017) to supply information and documents regarding the provision by it of project management consultancy services not limited to projects within the jurisdiction of the Meerut unit of the ST department but all over the country. The case of the Petitioner is that the charges for the above service is subsumed in the overall consideration it receives for the execution of various projects. 3. In any event, one of the central questions that arises is whether there is provision under the FA which vests power in the DGCEI that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... larly files ST returns and there is no invocation by Respondent No.3 of Section 72 (b) Of the FA to seek any explanation about alleged non-payment of ST. He drew the attention of the Court to the communication dated 3rd December, 2015 addressed by the DGCEI at New Delhi to the Additional Director General of the Lucknow Zonal Unit stating that the permission has been accorded to investigate the said case of service tax evasion by all branches of NBCC. He submitted that there was no material whatsoever to come to such conclusion about 'evasion' of tax by the Petitioner. 8.Mr Satish Aggarwala, learned counsel appearing for the ST Department informed the Court that the original file was available in the Court. When asked whether there was any note of the Director General (DG) of the DGCEI himself referring to the specific provisions of the FA permitting the empowering of the officer in the Meerut Unit to undertake a general enquiry into the non-payment of service tax by the Petitioner on the fee for management consultancy services provided by it, Mr. Aggarwala answered while there was an approval on file by the DG, there was no note referring to the statutory provisions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under Section 14 of CE Act to investigate and enquire into allegations of non-payment and evasion of tax. The two issues and questions overlap are being dealt with together. 15. Provisions for levy and imposition of service tax were introduced vide Chapter V in the Fin Act in 1994 and have been amended, updated and expanded from time to time. Service tax does not have a separate enactment like the CE Act, Customs Act or the Income Tax Act. Section 65B of the Fin Act which deals with interpretation vide clause 55 states that the words and expressions used in Chapter V of the Fin Act relating to service tax but not defined in the Chapter and are defined in the CE Act or the rules made thereunder, shall so far as may be apply in relation of service tax. Explanation clarifies for removal of doubts that provisions of Section 66 of Chapter V of the Fin Act for the purpose of levy and collection of service tax shall be construed as references to the provisions of Section 66B of the Fin Act. Section 66B creates a charge of service tax on or after Finance Act, 2012. 16. Section 83 of the Fin Act reads as under:- 83. Application of certain provisions of Act 1 of 1944 The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ocedure prescribed as applicable to service tax as noticed below are distinctly different. Differences between procedure and principles applicable under the Fin Act read-with CE Act and the Income Tax Act are manifold and need not be elaborated in entirety for the present judgment. However, we would encounter diametric difficulties if we apply the procedure and principles applicable to income tax proceedings to the procedure applicable to service tax as per the Fin Act. We would therefore elaborate and explain the procedure for assessment and also enquiry, adjudication and recovery of unpaid, unlevied or wrongly refunded service tax under the Fin Act. 17. We begin by referring to Sub-section 1 to Section 70 of the Fin Act, which reads as under: 70: Furnishing of returns. - (1) Every person liable to pay the service tax shall himself assess the tax due on the services provided by him and shall furnish to the Superintendent of Central Excise, a return in such form and in such manner and at such frequency and with such late fee not exceeding twenty thousand rupees, for delayed furnishing of return, as may be prescribed. As per the said provision, every person is requi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hstanding anything contained in sub-section (1) except the period of thirty months of serving the notice for recovery of service tax), the Central Excise Officer may serve, subsequent to any notice or notices served under that sub-section, a statement, containing the details of service tax not levied or paid or short levied or short paid or erroneously refunded for the subsequent period, on the person chargeable to service tax, then, service of such statement shall be deemed to be service of notice 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 subsection (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), determ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ously refunded service tax, if any, as may be determined by the [Central Excise Officer], but for this sub-section. Explanation 2. - For the removal of doubts, it is hereby declared that no penalty under any of the provisions of this Act or the rules made thereunder shall be imposed in respect of payment of service tax under this subsection and interest thereon. (4) Nothing contained in sub-section (3) shall apply to a case where any service tax 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. 4(A) [* * * *] (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 itis 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 pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act permits extended recovery for a period of upto five years in cases of fraud, collusion, wilful misstatement, suppression of facts or contravention of the Fin Act or the Rules with an intent to evade payment of service tax. To rely on and invoke the extended period the show cause notice issued by the Central Excise Officer must alleged and state fraud, collusion, wilful misrepresentation, suppression on facts etc. Explanation to the Sub-Section 1 to Section 73 provides that the period during which the service of notice is stayed by an order of the court shall be excluded in computing the period of limitation as aforesaid. Assessment in terms of Section 73(1) of the Fin Act is clearly period specific and not return specific. The period may or may not co-inside with the assessment year or even one return. At the same-time it may relate to several returns or a case where no return has been filed. 20. Sub-section 1A to Section 73 of the Fin Act as a non-obstante clause permits the Central Excise Officer to serve a statement containing details of service tax not levied, paid, short levied, short paid or erroneously refunded for subsequent period not exceeding thirty months where f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lanation 2 states that where the assessee has made payment in terms of sub section (3) to Section73, then no penalty under the provisions of the Fin Act or the Rules shall be imposed. However, interest as stipulated has to be paid. SubSection 4 states that nothing in Sub-Section 3 shall apply to cases of fraud, collusion, wilful misstatement, suppression of facts or contravention of any of the provisions of the chapter V or Rules thereunder with the intent to evade payment of tax. 22. Thus, as per Section 73, unless payment is made in terms of subsection 3 and 4 thereof, the starting point for proceedings for adjudicatory assessment is the issue of the show cause notice under Section 73(1) of the Fin Act. It is not the service tax return per se, but the show cause notice which is adjudicated and decided. 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. The notice under Section 73(1) of the Fin Act should contain and state reasons for issue both factual and legal and specify the amount for which recovery proceedings have been initiated. This requirement and mandate of Sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... require the person to produce such accounts, documents or other evidence as he may deem necessary and after taking into account all the relevant material which is available or which he has gathered, shall by an order in writing, after giving the person an opportunity of being heard, make the assessment of the value of taxable service to the best of his judgment and determine the sum payable by the assessee or refundable to the assessee on the basis of such assessment. Section 72 of the Fin Act, as the heading empowers best judgment assessment in cases where a person liable to pay service tax (a) fails to submit return or (b) files a return but fails to access the tax in accordance with provisions of chapter or Rules. As per the respondents failure to pay service tax according to the provisions of the chapter V and Rules is the prerequisite and pre-condition for invoking clause (b) to Section 72 of the Fin Act. Provisions of Section 72(b) would apply only when the assessee had failed to access the tax in accordance with provisions of Chapter V of the Fin Act. 25. Section 72 of the Fin Act, as the heading states, empowers and authorises the Central Excise Officer to make and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in particular, and the Rules are also clear pointers that Section 72 is a provision which authorises and empowers the Central Excise Officer to make best judgment assessment in proceedings for recovery under and in terms of Section 73 of the Fin Act. Neither Section 72 nor Rules postulate passing of an assessment order for recovery of service tax independent of and without following the procedure under Section 73(1) of the Fin Act. Section 72 of the Fin Act only authorises and states best judgement assessment order can be passed when the circumstances so warrant. 27. In view of the above discussion and ratio, we would in a given case accept that there could be more than one show cause notice over-lapping the same period of time for distinct issues and subject matters. The Fin Act does not bar and prohibit different show cause notices on different issues, facts and subject matter. Each show cause notice being independent has to be adjudicated and decided. Once decided the decision under Section 73(2) of the Fin Act would be binding unless challenged and questioned as per procedure prescribed. We would add a note of caution. Repeated or multiple show cause notices under Sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... quiry used in Section 14 of the CE Act would mean enquiry post the issue of show cause notice under Section 73(1) of the Fin Act and not before issue of a notice under the said section. The word inquiry has not been defined in the CE Act or in the Fin Act. The said word has to be read contextually and in harmony with the scheme and procedure under CE Act and Fin Act. The statutory requirement is that the enquiry which the officer is making should be for any of the purposes of the Fin Act. The expression any of the purposes of this Act used in Section 14 of the CE Act though a wide and broad expression is also a restriction. When read in this manner, we would not restrict and confine the scope and power to collect evidence, documents etc. to cases where show cause notice under Section 73(1) of the Fin Act has been issued or any other specific proceeding is pending. Summons under Section 14 of the CE Act can be issued to ascertain and verify details and ask for relevant evidence and material for the purpose of the Fin Act. This would be the right way to interpret Section 14 of the CE Act, for the procedure prescribed and followed both in CE Act and Fin Act is that the show-cause ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o any premises registered under these rules for the purpose of carrying out any scrutiny, verification and checks as may be necessary to safeguard the interest of revenue. (2) Every assessee, shall, on demand make available to the officer empowered under sub-rule (1) or the audit party deputed by the Commissioner or the Comptroller and Auditor General of India, or a cost accountant or chartered accountant nominated under section 72A of the Finance Act, 1994,- (i) the records maintained or prepared by him in terms of sub-rule (2) of rule 5; (ii) the cost audit reports, if any, under section 148 of the Companies Act, 2013 (18 of 2013); and (iii) the income-tax audit report, if any, under section 44AB of the Income-tax Act, 1961 (43 of 1961) for the scrutiny of the officer or the audit party, or the cost accountant or chartered accountant, within the time limit specified by the said officer or the audit party or the cost accountant or chartered accountant, as the case may be. Rule 5A no doubt vests and authorises the Central Excise Officers with power to access registered premises of a person for scrutiny, verification and check but this would not show th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... regarded and ignored as inconsequential by the officers of the respondents, who have been empowered to decide which power or provision should be invoked. 33. Exercise of discretionary power relating to procedure can be challenged on limited number of grounds, like patent and gross misuse, ex facie grave disproportionate hardship and inconvenience to the person when a more convenient and acceptable mode for compliance is available, or mala fides in exercise of power etc. Courts would, however, not interfere merely because the authority has exercised discretion that is not acceptable to the assessee. The choice whether or not to exercise power of special audit, summons etc. is for the respondents to decide and exercise, and not for the petitioner to direct. 34. However, we have reservation on the language used in some of the notices/summons requiring presence of the Managing Director and senior officer of the petitioner with threats or warning that they would be punished or prosecuted. Presence of senior officer may not be necessary when legal issues arise for consideration. Assessee on such issues depends and relies on professional advice. Even when facts are to be ascertained ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction 14 has jurisdiction to issue summons for the purposes specified under Section 14 by virtue of the aforesaid notification. We are further of the opinion that it was not necessary for the Asstt. Director to disclose the material which necessitated holding of the inquiry in the summons. The Asstt. Director is holding a statutory inquiry and so is acting within his jurisdiction and it cannot be said that the Asstt. Director has no authority to proceed under Section 14 to issue summons for evidence and for production of documents. 36. Similarly a single Judge of the High Court of Calcutta in Mira Chemical Industries Ltd. Vs. D.P. Anand, Collector of Central Excise, Calcutta, 2000 (123) E.L.T. 147 (Cal.) has held that power under Section 14 of the CE Act could be exercised by a duly authorized officer for any kind of investigation under the Act or the Rules and there was no restriction on any particular matter arising out of the CE Act. The officers were entitled to issue summons and ask the party to comply with the directions. In the said case, the contention that the authorities were asking the party to reveal confidential and secret industrial process, was rejected, obs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nces though no one was an accused or charged with any offence, but someone may be suspected of having committed an offence. Summons could be issued asking the said person to give information and not as a witness to depose against someone. The enquiry could be to ascertain whether or not a wrongful act or even breach of law was done. Proceedings under Section 171-A need not be in relation to any criminal prosecution and could even be an essential preliminary to such proceedings. It was held that there was little doubt having regard to the difficulties attendant to tracing a smuggler that the power to obtain compelled testimony from anyone in possession of the relevant information would constitute a just relation to the object of the enactment. The power could very much be exercised for detection, which would be covered and could be treated as enquiry and, therefore, the provision was valid as it had conferred power of detection and right to compel parties having requisite documents, knowledge and information and to produce the document and furnish the information. 40. We would now examine whether officers of DGCEI are Central Excise Officers and have all India jurisdiction. We wo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ifferent Central Excise Officers. While dividing and demarcating the functions, the Board for the said purpose can fix local limits within which the Central Excise Officer would exercise power and also specify the taxable service in relation to which such power can be exercised. Thus, the Fin Act or the Rules i.e. Chapter V of the Finance Act, 1994 or Service Tax Rules,1994, do not refer to and specify territorial or pecuniary jurisdiction to the Central Excise Officer in relation to powers to be exercised under the Fin Act. This is left to the Board to decide and confer power on the Central Excise Officers. We would observe that Rule 3 of the Rules confers very wide discretion to the Board without any restriction and limitation to confer jurisdiction on the Central Excise Officers to exercise powers under the Fin Act and the Rules. The Board is empowered to assign, withhold, and confer jurisdiction amongst different officers and for this purpose demarcate and divide the functions to be performed. Rule 3 of the Rules, no doubt, refers to local limits i.e., the area or the Venue . However, taxation laws recognise difference and distinction between jurisdiction and venue . The te ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he expression any person would include an officer of Central Excise Department or even for that matter an officer of the State Government, who could be vested with the power by the Board. There was no warrant to give a limited or narrow scope to the language employed by the Legislature in the second part of Section 2(b). Use of the word invested in Sub-section (b) to Section 2 meant that the Board was competent to invest powers in any person, which power was not circumscribed and controlled by territorial or pecuniary limits, which means both investigation and adjudication of cases could be assigned to the officers by the Board from time to time. Accordingly, notification dated 29th May, 1986 vesting the power of investigation with the Director General of Inspection and Audit, Customs and Central Excise, New Delhi for the entire territory of India was upheld as this was permissible under the provisions of Sub-section (b) to Section 2 of the CE Act. Reference was made to an earlier decision of a Division Bench of this Court in Writ Petition No. 2918/1987, decided on 12th October, 1987. 45. In Duncan Agro Industries Limited (supra), one of the contentions raised was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... esire. This is recorded. 35. As we have held earlier, there is no territorial limitation laid in the statute and more than one officer is envisaged in the statute to have territorial jurisdiction over the land or premises of the producer of any excisable goods. If two or more Collectors are competent to adjudicate the cases of a manufacturer or producer, then the power inheres in the Board to assign a case to one of the competent authorities. There is an implied authority to assign a case to one for investigation and adjudication. There is no vested right in a manufacturer or producer to be assessed by a particular functionary. The Rules do not either expressly or by necessary implication apply the rules of audi alteram partem in assignment of cases to one out of two competent authorities. The impugned order dated February 11, 1987 only assigns to the Director (Audit) the cases annexed to that order for the purpose of investigation and adjudication. It is merely a ministerial act of assigning between two competent jurisdictions. It is purely an administrative function by the Board. The principles of natural justice have been reiterated in S.R. Dass v. Union of India , 1986 S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , Guntur has competency to issue the supplementary show cause notice. 36. It is true that a judicial power cannot ordinarily be delegated unless the law expressly or by clear implication permits it. Section 37A of the Act empowers the Central Government to direct by a notification, inter alia, that any power exercisable by a Collector of Central Excise under the Act may be exercisable by a Deputy Collector etc. The aforesaid paragraphs are relevant for they clearly observe that in the CE Act there was no concept of territorial jurisdiction laid in the Statute itself and it was possible that more than one officer may have concurrent jurisdiction to adjudicate the cases of a manufacturer or producer. The Board was empowered to assign cases to one of the competent authorities. There was no vested right in a manufacturer or producer to be assessed by a particular functionary. The Board when it would assign adjudication or investigation function to a particular officer, would act purely in administrative capacity and, therefore, the rule of audi alteram partem would not expressly or by necessary implication apply. The decision observed that there was no requirement in the stat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ising the power under Chapter V of the Fin Act. It stipulates that such powers can be exercised within such local limits as may be assigned to them and also specify taxable service in relation to which the Central Excise Officer can exercise his powers. In terms of the said Rule, the Board has issued Notification Nos. 20/2014 and 22/2014 both dated 16th September, 2014. Notification No. 20/2014 (the first notification) is a master notification which defines territorial jurisdiction (local limits) of the field formations on geographical basis. It specifies territorial jurisdiction for exercise of powers by officers in service tax matters. Notification No. 22/2014 (the second notification) specifies jurisdiction of officers of DGCEI throughout territory of India and empowers them with all powers under Chapter V of the Fin Act. The second notification clearly answers the contention raised. Validity of this notification is not challenged in the writ petition. Learned counsel for the petitioner in the written submission had questioned validity of the second notification, but in the absence of pleadings and prayer in the writ petition the contention cannot be examined and adjudicated. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... spondents to grant reasonable time. In most cases possibly furnishing of self-certified true copies would be sufficient. 50. In view of the aforesaid discussion, we leave it to the Central Excise Officer to decide how to go about and proceed while deciding and exercising discretion whether or not he or she would invoke the power under Rule 5A(1) or seek enforcement of directions by production of documents and papers by recourse to Section 14 of the CE Act. While deciding on the said option, due regard would be given to any representation or submission made by the petitioner-assessee. Further, in case papers and documents can be supplied by post or other means or by hand, the said option should be given. Repeated notices, one after the other, should be avoided unless for some reason examination of earlier documents requires furnishing of further particulars and papers. 51. We have already referred to the interim orders passed by the Court, restraining DGCEI from conducting investigation and collecting material and documents pursuant to the notice under Section 14 of the CE Act. Interim orders dated 7th May, 2015 and 5th July, 2017 had permitted DGCEI to collect information from t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court had left it open to DGCEI to gather information from respective Commissionerates in which the petitioner was registered. Accordingly, DGCEI had written letters to the respective Commissionerates in which the petitioner was registered, who in turn have written letters to the petitioner s unit registered within their jurisdiction. With regard to other show cause notices, etc., it is submitted that they relate to different aspects, which are not subject matter of the PMC charge investigation before the DGCEI. Further, desk review is done by jurisdictional Additional Commissioner, who draw the audit plan based upon the actual audit of the unit undertaken by scrutiny of documents, viz., purchase bills, sale bills, ledgers, bank statements, etc., at the premises of the assessee. It is stated that audit report for Delhi unit has been issued to the petitioner. 54. In Grindlay s Bank Ltd. Vs. Income Tax Officer, Calcutta and Ors. 1980 (2) SCC 191, Division Bench of the High Court while accepting the appeal filed against the order of the learned single Judge of the High Court, had permitted the Assessing Officer to pass a fresh assessment order, though the limitation period had exp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2 ridiculous and useless. It cannot be said that what the notified authority could direct under Section 132 could not be done by a court which exercises its powers under Article 226 of the Constitution. To hold otherwise would make the powers of courts under Article 226 wholly ineffective. The court in exercising its powers under Article 226 has to mould the remedy to suit the facts of a case. If in a particular case a court takes the view that the Income Tax Officer while passing an order under Section 132(5) did not give an adequate opportunity to the party concerned it should not be left with the only option of quashing it and putting the party at an advantage even though it may be satisfied that on the material before him the conclusion arrived at by the Income Tax Officer was correct or dismissing the petition because otherwise the party would get unfair advantage. The power to quash an order under Article 226 can be exercised not merely when the order sought to be quashed is one made without jurisdiction in which case there can be no room for the same authority to be directed to deal with it. But in the circumstances of a case the court might take the view that another author ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Consultancy Charge in respect of Commissionerate/ registration except those subject matter of show cause notice dated 13th March, 2015 issued by the Commissionerate of Central Excise and Service Tax, Patna. (iv) Interim orders are accordingly, vacated except and limited to evidence and documents, subject matter of demand-cum-show cause notice dated 13th March, 2015 issued by the Patna Commissionerate. (v) Period between 10th Februrary,2016 when the stay order was passed till the pronouncement of the judgement would be excluded for purpose of computing limitation period specified for issue of show cause notice under Section 73(1) of the Fin Act. 57. Recording the aforesaid and in terms of the observations made above, the writ petition is dismissed, albeit holding and clarifying that the proceedings before the Central Excise Officer relating to PMC Charges would not include the subject matter of the show cause notice issued by the Patna Commissionrate. As noted in paragraph 6 above, we have not examined scope and ambit of the Notification No. 25/12-ST. Question and issue of chargeability of service tax on PMC Charge etc. is left open. In the facts of the present case, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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