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2023 (10) TMI 63 - HC - Service TaxJurisdiction to issue SCN - SCN issued on the basis of the provisions declared ultra vires - Time-barred - HELD THAT:- The argument with respect to limitation is based on Section 73(1) of the Finance Act, 1994. Section 73(1), which came into effect from 28.05.2012, enables a notice to be served on the person chargeable with the service tax, which has not been levied or paid or which has been short-levied or short-paid within a period of 18 months from the relevant date. The relevant date discernible from Section 73(6) is the date on which the return is filed or the date prescribed under the Rules, if no return is filed. It has also to be noticed that when there is an allegation of short levy or short payment or erroneous refund on the grounds of (a) fraud, (b) collusion, (c) willful mis-statement, (d) suppression of facts; or (d) contravention of any of the provisions of this Chapter or the rules made thereunder with intent to evade payment of service tax, then the period of limitation is five years which period stands substituted for eighteen months as seen from the proviso to sub-section (1) of Section 73. When there is a delayed filing of the return under Rule 7C of the Service Tax Rules, 1994, it has to be presumed that the amount specified in Rule 7C has been paid and so has the tax liability been satisfied. In that circumstance, the relevant date is the date on which the tax has been paid. As is evident from Annexure-17, for the period between April, 2015 and September, 2015 the assessee has filed an ST-3 Return on 25.07.2016 while returns for the remaining relevant period were filed thereafter. The limitation, hence, commences on 25.07.20216 and as on 25.07.2021, the date of demand-cumshow cause notice; the five year period, has not expired. The ground of limitation raised fails and is rejected. Jurisdiction to issue SCN - HELD THAT:- The Central Services and Goods Act, 2017 came within one year, i.e. on 12.04.2017. The C.G.S.T. Act contained Section 173 by which Chapter V of the Finance Act stood omitted. However, Section 174 of the CGST Act dealing with Repeal and Saving, by sub-section (2) saved the operation of the Amended and Repealed Acts and orders issued thereunder or anything duly done or suffered thereunder; without any right, privilege or law accrued under the Amended Act being affected by reason of the amendment in Section 173. Hence, despite the CGST Act having come into force on 01.08.2017, the proceedings under Chapter V of the Finance Act, 1994 stands validated. Another contention raised by the learned counsel for the petitioner that earlier a notice was issued which was replied, but no action was taken thereunder - HELD THAT:- It is seen from Annexure-9 that a pre-notice consultation was scheduled on 09.07.2021 at 12:00 P.M. through virtual mode. The e-mail produced at Annexure-9 is said to have enclosed a demand-cum-show cause notice which was almost on the same lines of the demand-cum-show cause notice; but without a date. The petitioner has replied to the same by Annexure-13, but however, raising many contentions on jurisdiction, limitation and so on, as also citing various decisions, but, however, not focusing on the factual allegations raised of mis-representation and suppression of the actual taxable value of services provided during the assessment years. There are absolutely no reason to interfere with the show cause notices - petition dismissed.
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