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TMI Blog2015 (4) TMI 396X X X X Extracts X X X X X X X X Extracts X X X X ..... a later stage demand-cum-show cause notice dated 17.10.2014 has been issued, which is at Annexure 8 to the supplementary affidavit filed by the petitioner, which includes the amount of Rs. 4,45,97,399/- towards the Service Tax. It is further submitted by the counsel for the petitioner that in the letter dated 11.08.2014, which is at Annexure 5, which is under challenge, it has been stated that the amount of Rs. 4,45,97,399/- towards Service Tax, which is payable by the petitioner, is undisputed and unpaid. This is factually wrong statement. In fact, the said amount is highly disputed and the petitioner has already written a letter dated 13.11.2014, which is at Annexure 9 to the 2nd supplementary affidavit, admitting his liability, upon exa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ble High Court of Uttarakhand in the case of R.V. Man Power Solution Vs. Commr. Of Cus. and Central Excise reported in (2014) 69 VST 528 (Uttarakhand) equivalent citation (2014) 45 GST 567 (Uttarakhand). Counsel has specially relied upon paragraph 9 of the said decision. On the basis of the aforesaid decisions, it is submitted by counsel for the petitioner that unless the proceeding under Section 73 of the Act is completed recovery notice under Section 87 issued by the respondents, dated 11.08.2014 (Annexure 5) could not have been issued by the respondents and hence, also the said notice under Section 87 of the Act dated 11.08.2014 deserves to be quashed and set aside. 3. Counsel for the respondents submitted that the liability towards ser ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der Section 14, it does not appear that petitioner had admitted the liability towards service tax at Rs. 4,45,97,399/-. For ready reference the said questions and answers reads as under: "Question No. 11. Why you have not paid the Service Tax? Answer. Due to financial crunch, we have not paid the Service Tax. Question No. 12. It is observed that you have not paid Service Tax amounting to Rs. 7,30,81,479/- only during the period 2009-10 to 2013-14. What you have to say? Answer. Prima facie, it is true. But detail calculation will be provided on 26.03.2014." (ii) A letter has been written by this petitioner on 23rd April, 2014, in which, he has given calculation for his liability at Rs. 4,45,97,399/-, which has been further disputed vide ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the tax. This authority should rely upon the proof of the liability to pay the tax rather than the admission being made by the assessee, hurriedly. (c) When the assessee is writing a detailed letter within few days that now the calculation of the service tax amount comes to Rs. 3.05 crores instead of Rs. 4.46 crores approximately and when during his statement recorded under Section 14 of the Central Excise Act, 1944, as stated herein above, while replying the question no. 12 categorically has stated that he shall give detail calculation later on, upon conjoint reading of answer of question no. 12 and letter dated 13.11.2014 of this petitioner makes it abundantly clearer that the amount of service tax is a disputed amount and in absence o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inancial years 2009-10 to 2013-14 is enclosed and marked as Annexure-L. Accordingly, it appears that ESSPL is liable to pay Service Tax, Education Cess and Secondary & Higher Education Cess of Rs. 6,39,70,909/-, Rs. 12,79,418/- and Rs. 6,39,709/- respectively, aggregating to Rs. 6,58,90,037/- during the period 2009-10 to 2013-14." In view of the aforesaid demand-cum-show cause notice it appears that the disputed amount of Rs. 4,45,97,399/- is also inter-woven. (f) Thus, it appears that on one hand the respondents have also issued a notice under Section 73 (1) of the Act of 1994 for recovery of Rs. 6,58,90,037/- which includes Rs. 4,45,97,399/-. A composite notice has been issued, which is stamped as demand-cum-show cause notice dated 17.1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... without adjudication of such disputed taxes was simply not permissible in law. We notice that section 73C of the Finance Act, 1994 allows the department to make provisional attachment of the properties of the assessee during the pendency of the proceedings under section 73 or 73A of the Act for the purpose of protecting the interest of the Revenue. Such provision cannot be activated for seeking recovery even before adjudication. Recovery of unpaid tax is to be made as per section 87 of the said Act which provides for the power and procedure for such recoveries." (Emphasis supplied) (v) It has also been held by Hon'ble High Court of Uttarakhand in paragraph 9 of the judgment rendered in the case of R.V. Man Power Solution vs. Commr. of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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