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2019 (1) TMI 1437 - AT - Service TaxDemand of service tax by way of statement in lieu of Show cause notice (SCN)- demand-cum-penalty - mobile telephone services rendered by the appellant to their employees - period after 2012 - post negative list regime - invocation of section 73 (1A) of Finance Act, 1994 - non-invocation of section 73(1) of Finance Act, 1994 - Held that:- It is trite that a taxing statute, before proceeding to recover any tax that were short-paid, mandates notice supported by evidence, opportunity to respond in writing and in person before an adjudication. The present proceedings appears bereft of such and is, thus, tantamount to a notice for payment of the said taxes relying entirely on preceding adjudication for an earlier period. Obviously, the provision is to be invoked in restrictive circumstances and cannot, by any stretch, be a substitute for resorting to section 73(1) in each and every subsequent period. The jurisdictional Commissioner has traversed beyond referring to the demand for the preceding period to record the changes effected in consequence of taxation in the negative list and has drawn upon the authority of Article 265 of the Constitution. This is clearly in excess of the circumstances contemplated in the newly incorporated artifice and sufficing to vitiate the impugned order. The tax regime had altered since period covered by the order relied upon in the present 'demand-cum-penalty notice' and the impugned order goes beyond mere reference to the earlier order to adjudicate, without notice and opportunity, the applicability in the transformed tax regime. The facts and circumstances of the transactions themselves are found to be vastly dissimilar - section 73 (1A) of Finance Act, 1994 is not invokable and the deficiency in invoking section 73(1) of Finance Act, 1994 is irreparable. Appeal allowed - decided in favor of appellant.
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