Home Case Index All Cases Service Tax Service Tax + HC Service Tax - 2017 (9) TMI HC This
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2017 (9) TMI 286 - HC - Service TaxPower of access the premises of the assessee - Vires of Rule 5A(1) of the Service Tax Rules, 1994 - Rule 5A(2) of the Service Tax Rules, 1994 has been declared ultra vires once. Such a Rule was amended subsequently. The amended Rule is presently under challenge - Is Rule 5A(1) of the Service Tax Rules, 1994 ultra vires the Finance Act, 1994? - Held that: - Sub-section (2) of Section 82 employs the provisions of the Code of Civil Procedure, 1973 relating to searches for the searches to be made under the Act of 1994. The power to search given in Section 82, therefore, cannot be said to be unbridled. It has the checks, balances and parameters of the Code of Civil Procedure, 1973 governing its sphere of operation. Sub-rule (1) of Rule 5A of the Service Tax Rules, 1994 cannot be read to exceed the sphere of operation as circumscribed by Section 82 of the finance Act, 1994. In fact, the sub-rule does not profess to do so. It allows an officer to have access to any premises for the purpose of carrying out any scrutiny, verification and checks as may be necessary to safeguard the interest of the revenue. Access to the premises is a lesser power than the power to search the premises as granted under Section 82 of the Act of 1994. Sub-rule (1), therefore, cannot be construed to mean that, it is in excess of the parent power of searching the premises as granted under Section 82 of the Act of 1994 - decided against petitioner. Are the proceedings taken by the respondent no. 2 against the petitioner required to be quashed being in excess of the powers? - Held that: - An enquiry is under process with regard to the alleged procurement of CENVAT credit fraudulently. The enquiry is yet to be completed. The enquiry relates to the business of the first petitioner. The first petitioner ought to participate in such enquiry. The modus operandi stated in the affidavit of the respondent no. 2 with regard to the obtaining of CENVAT credit by a insurance company is such that, the petitioner who is engaged in the business of insurance and is suspected to have indulged in such wrongful practices is required to be examined so also officers of the petitioner involved in the transactions - In such circumstances, I am not in a position to say that, the proceedings taken by the respondent no. 2 against the petitioner are required to be quashed. The second issue is answered in the negative and against the petitioner. Petition dismissed - decided against petitioner.
|