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2015 (5) TMI 300 - HC - Service TaxRecovery of service tax without making assessment - Whether, without there being any adjudication in any of the proceedings as provided under Chapter 5 of the Finance Act, 1994 coercive steps can be taken by the Revenue, for recovery of service tax or penalty or interest - Held that:- The benefit that the assessee would get by voluntarily paying service tax under the scheme provided is that he would be saved from the rigours of penalty payable on account of non payment of service tax payable and interest thereon. Similarly, subsection 4A would deal with the situation wherein in the course of any audit, investigation or verification, it is found that service tax is not levied or paid or shortlevied or shortpaid or erroneously refunded. The said subsection would deal with an eventuality when true and complete details of transactions are available in the specified records. In this case, an assessee is again having an option to pay service tax in full or in part, as he may accept to be the amount of tax chargeable or erroneously refunded alongwith interest payable thereon under section 75 and penalty provided therein. It further appears that under the said provision the assessee would be entitled to the benefit, in as much as maximum penalty that would be leviable is only 25 per cent, whereas otherwise it would be 50 per cent. Again under the said provision, the Central Excise Officer is empowered to proceed as provided under subsection (1), if he is of the opinion that the amount so paid by the assessee has not been paid fully and more amount is due and payable by him. Scheme of the act is that the tax would be held to be payable only after adjudication either under Section 72 or subsection 2 of section 73 of the said Act. As already stated by us hereinabove that even when an assessee voluntarily pays tax under subsection (3) and 4A of section 73, even in that case, in so far as disputed amount is concerned, determination as required under subsection 2 of section 73 is required to be done. By now it is settled principle of law that when a law requires a particular things to be done, in a particular manner, it has to be done in that manner alone and not at all. If the Statute permits an authority to make a demand on the basis of the preliminary assessment made by it, even prior to there being adjudication, the matter would have been different. - The Statute vests ample power with the authorities to deal sternly with such of the assessee who either fraudulently or with intention to deprive revenue of its legitimate dues evades payment thereof. Not only that, but if the Central Excise Officer is of the opinion that for the purpose of protecting interest of the revenue, it is necessary to attach provisionally any property belonging to a person on whom notice is served under Section 73 or section 73 of the said Act, he is empowered to do so, however, with previous approval of the Commissioner of Central Excise. However, at the same time, the law enforcers cannot be permitted to do something which is not permissible within the four corners of law. Impugned communication which demands the Petitioner to make payment of the interest and also threatens them that in the event the said payment of interest is not made, coercive action under Section 87 would be taken against them, would not be sustainable in law. - impugned action is not sustainable in law. Rule is made absolute by quashing and setting aside the impugned communication dated 25/3/2015 - Decided in favour of assessee.
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