Home Case Index All Cases Service Tax Service Tax + HC Service Tax - 2015 (9) TMI HC This
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2015 (9) TMI 365 - HC - Service TaxOrder beyond the scope of show cause notice - interpretation of SCN - waiver of pre-deposit - whether a new or foreign case can be made out by an adjudicating officer without affording an opportunity to the noticee to defend the charge. - Composition scheme under Works contract service - In paragraph 4.13 of the Order-in-Original, the adjudicating authority have explicitly and clearly recorded the violation of Rule 3(3) of the said rules and held that since the conditions of the composite scheme has not been fulfilled, it cannot be accepted that any Service Tax has been paid on excavation service provided by the noticee in course of shaft sinking. Held that:- This Court does not find from the show cause notice that there is any reflection of Rule 3(3) of the said rules which could only see the light of the day in the order of the adjudicating authority. Though Mr. Das was much vocal in saying that during the recording of the evidence of the officer of the noticee, the offence to the said provision has been recorded but this Court does not find the aforesaid submission to be tenable. If in the preceding page of the show cause some recording which may justify the invocation of the aforesaid rules was apparent, there is no difficulty in including the aforesaid violation in paragraph 7 thereof where the authority jotted down the violation of the specific provision of the Act. Since this Court have simply decided on the ground that a matter foreign to the show cause notice was the basis for adjudication which is clearly impermissible in law, this Court find that the petitioner has made out a strong prima facie case for the purpose of dispensation of pre-deposit conditions. Since this Court has found that the petitioner has made out strong prima facie case, the CESTAT should have directed the total waiver. This Court, therefore, find that this order of the Tribunal is illegal, arbitrary and have been made without application of mind and is, therefore, not sustainable. - stay granted.
|