TMI Blog2015 (4) TMI 396X X X X Extracts X X X X X X X X Extracts X X X X ..... MR. D.N. PATEL AND MR. PRAMATH PATNAIK, JJ. For The Petitioner : M/s Vikas Pandey, Mahendra Choudhary, Amrita Sinha Anupam Anand, Advocates For The Respondent : M/s Deepak Rosha Amit Kumar, Advocates. 1. This writ petition has been preferred challenging the order dated 11.08.2014, which is at Annexure 5, mainly for the reason that the amount demanded under Section 87 of the Finance Act, 1994 is not based upon any adjudication, on the contrary now at 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 ₹ 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 ₹ 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, a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Excise Act was recorded. Moreover, he has also given detailed calculation vide its letter dated 23.04.2014 and, therefore, straightway notice under Section 87 of the Finance Act has been issued, which is at Annexure 5 of the memo of this petition, and, hence, this petition may not be entertained by this Court. Even otherwise also the respondents has also issued demand-cum-show cause notice dated 17.10.2014 under Section 73 of the Act of 1994, which will be adjudicated upon by the respondents and the order passed by the respondents is always appealable order and, therefore, also this petition may not be entertained by this Court. 4. Having heard learned counsels for the parties and looking to the facts and circumstances of the case, we hereby quash and set aside the notice dated 11.08.2014, issued by the respondents under Section 87 of the Finance Act, 1994, which is for the recovery of service tax, mainly for the following facts, reasons and judicial pronouncements: (i) Looking to the facts of the present case, it appears that raid under Section 82 of the Finance Act, 1994 was carried out in the premises of the petitioner on 25.03.2014. Statement under Section 14 of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... imposing and levying authority should prove the liability of the assessee to make the payment of 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 ₹ 3.05 crores instead of ₹ 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 of documents at hand mistakenly the calculation was given at ₹ 4,45,97,399/-. It ought to be kept in mind by tax imposing and levying authority that such detailed calculation for the assessment years 2009-10, 2010-11, 2011-12 and 2012-13 cannot be expected from this petitioner without availability of data at its hands. There might be som ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and set aside. (iv) It further appears that notice under Section 87 of the Act cannot be given by the respondents unless, there is determination of the amount, after issuance of the notice under Section 73 (1) or under Section 73-A(1) of the Act, 1994, as held by Hon'ble High Court of Gujarat in the case of Technomaint Contractors Pvt. Ltd Vs. Union of India, as reported in (2014) 69 VST 247 (Guj), paragraph 6 whereof reads as under: 6. The petitioners having already deposited a sum of ₹ 1.16 crores (rounded off) with the department by now, at best, they may be called upon to deposit difference amount of ₹ 8 lakhs. The remaining recovery is highly disputed. The petitioners have raised several disputes including the dispute that some of the services having been provided in the special economic zone areas, serving tax is not applicable. We are not judging the validity of such contentions. All that we are suggesting is that when the show cause notice was issued by the department to which the petitioners have raised their objections, recoveries without adjudication of such disputed taxes was simply not permissible in law. We notice that section 73C of the Finance ..... X X X X Extracts X X X X X X X X Extracts X X X X
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