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2014 (12) TMI 629 - MADRAS HIGH COURTVCES Scheme - Whether any enquiry / audit objection, or any action whatsoever was pending against the petitioner, as on 01.03.2013 - construction of residential houses on contract basis - show cause notice was on 31.07.2013 - Registration problem with ACES - Rejection of application under VCES since audit initiated - Held that:- It has to be pointed out that there was no audit initiated/conducted against the petitioner or in the business premises of the petitioner. This has not been disputed by the Department. However, the petitioner would state that an audit was conducted in M/s.Shobika Impex Private Limited and the petitioner had done certain construction activities in the said company and a communication was sent by the Range Officer to the petitioner on 07.03.2013. It has to be further pointed out that the cut-off date is 01.03.2013 and as on the said date, there was no audit objection. Even assuming that M/s.Shobika Impex Private Limited was the subject matter of audit from 01.03.2013, the petitioner was not put on notice, prior to 01.03.2013. The petitioner was intimated by the Range Officer, Tiruppur Range, on 07.03.2013. The petitioner's consistent case is that the Range Officer is not the competent authority to initiate any audit. Nevertheless, a reading of the impugned order shows that the communication, dated 07.03.2013 is only an intimation, probably, with a view to intimate the petitioner that they have to register themselves under the Service Tax regime and pay taxes. The petitioner did not ignore the communication of the Range Officer, but accepted the same with utmost seriousness. This is manifest by the petitioner's representation dated 08.03.2013, addressed to the competent authority, namely, the Superintendent of Central Excise, and the contents of the same have been elaborately set-out in the preceding paragraphs of this order, which clearly show the bona fides of the petitioner. Therefore, this Court has no hesitation to hold that as on the date when the application was filed by the petitioner, there was no audit as against the petitioner. - Even assuming that there was an audit with M/s.Shobika Impex Private Limited, such audit was not put on notice to the petitioner, by the competent authority, till the show cause notice was issued. The communication of the Range Officer was not an intimation of audit objection. Even assuming if it is considered as an intimation of audit objection, yet the communication on 07.03.2013 was much after the cut off date. Thus the issue that has to be considered by the Authority is, as to whether the petitioner could be considered to be ineligible under the scheme, for which the authority should not be solely guided by the Range Officer's communication, dated 07.03.2013, which appears to be an advice or notice and the petitioner has taken the advice well and proceeded in accordance with law. - Matter remanded back - Decided in favour of assessee.
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