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TMI Blog2013 (9) TMI 792X X X X Extracts X X X X X X X X Extracts X X X X ..... ervice" as defined and covered under the various provisions of Section 65 of Chapter V of the Finance Act, 1994. Another prayer made is that Rs. 2,64,98,557/- paid by the petitioner, which is claimed to be illegally collected, should be refunded. 2. Interestingly, during the course of arguments, learned counsel for the petitioner submitted that once Rs. 2,64,98,557/-, which includes interest of Rs. 58,31,270/-, stands paid, then the show cause notice under Section 73(1) is bad in law as the petitioner herein has made self payment and therefore benefit of Section 73(3) of the Finance Act, 1994 is applicable. We need not examine the said issue but it does appear that the contention raised by the petitioner is self contradictory. If the petit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Union of India, 2011 (266) ELT 422 (SC) and Commissioner of Central Excise, Banglore Vs. Brindavan Beverages (P) Ltd. 2007 (213) ELT 487(SC). 5. In Oryx Fisheries Pvt. Ltd.(supra) the following observations have been made:- "28. It is no doubt true that at the stage of show cause, the person proceeded against must be told the charges against him so that he can take his defence and prove his innocence. It is obvious that at that stage the authority issuing the charge-sheet, cannot, instead of telling him the charges, confront him with definite conclusions of his alleged guilt. If that is done, as has been done in this instant case, the entire proceeding initiated by the show cause notice get vitiated by unfairness and bias and the subseq ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he aforesaid paragraph only shows objectivity and that authority had applied his mind. Reading of paragraph 10.4 does not disclose a pre determined mind or decision. A show cause notice must and should make prima facie allegations and facts have to be pointed out and confronted for answer. Paragraph 10.4 in the first line uses the words "it appears that" which is indicative of a prima facie opinion and not final determination. No doubt the cause title of the show cause notice uses the words "show cause cum demand notice" but a reading of the notice would reveal that it is not a demand notice but a show cause notice calling upon the petitioner to make submissions. Final determination on various aspects will be after hearing, if requested and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. That is not sufficient to proceed against the respondents, unless it is shown that they were parties to the arrangements, it any. As no sufficient material much less any material has been placed on record to substantiate the stand of the appellant, the conclusions of the Commissioner as affirmed by the CEGAT cannot be faulted." 10. Aforesaid paragraph states that a show cause notice must be lucid and clear and relevant facts have to be stated. In these circumstances, we do not accept the contention of the petitioner that the show cause notice reveals that the adjudicating authority has already formed an opinion and decided the issue. The adjudicating authority is not the author of the show cause notice. 11. Writ petitions against show ..... X X X X Extracts X X X X X X X X Extracts X X X X
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