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2018 (10) TMI 1376 - HC - Service TaxCENVAT Credit - ineligible availment of CENVAT Credit - Rule 6 (3B) of the CENVAT Credit Rules, 2004 - no suppression of facts - extended period of limitation - invocation of Section 73(1) of the Act of 1994, read with Rule 14 of the CENVAT Credit Rules, 2004. Held that:- The allegation of suppression contained in the impugned show- cause notice against the petitioners, for the purpose of invoking the extended period of limitation, requires consideration. It is a fact which constitutes the assumption of jurisdiction by the respondents. Notwithstanding the existence of statutory alternative remedy, a writ petition directed against a show cause notice is maintainable, if it can be established, after taking the statements made in the impugned show-cause notice to be true and correct, that the same do not constitute requisite facts to assume jurisdiction by the authority issuing the impugned notice. In the facts of the present case, the issue of jurisdiction is a pure question of law. The facts stated in the impugned show-cause notice have to be assumed as correct for the purpose of deciding the issue of jurisdiction. The issue of limitation has to be adjudicated on the same principles, so far as this case is considered. The period of time for which the impugned show-cause notice has been issued overlaps with the period of time for which either a proceeding is pending or stands concluded. The department cannot be allowed to revisit the same issue under the garb of exercise of powers under Section 73 of the Act of 1994. The petitioners are not guilty of omitting or failing to disclose wholly or truly all materials required for verification of the assessment under Section 71. Facts constituting the assumption of jurisdiction under Section 73 of the Act of 1994 are lacking. The impugned show-cause notice is, therefore, without jurisdiction. Petition allowed.
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