TMI Blog2015 (9) TMI 365X X X X Extracts X X X X X X X X Extracts X X X X ..... es not find the aforesaid submission to be tenable. If in the preceding page of the show cause some recording which may justify the invocation of the aforesaid rules was apparent, there is no difficulty in including the aforesaid violation in paragraph 7 thereof where the authority jotted down the violation of the specific provision of the Act. Since this Court have simply decided on the ground that a matter foreign to the show cause notice was the basis for adjudication which is clearly impermissible in law, this Court find that the petitioner has made out a strong prima facie case for the purpose of dispensation of pre-deposit conditions. Since this Court has found that the petitioner has made out strong prima facie case, the CESTAT should have directed the total waiver. This Court, therefore, find that this order of the Tribunal is illegal, arbitrary and have been made without application of mind and is, therefore, not sustainable. - stay granted. - W.P. No. 15766 (W) of 2014 - - - Dated:- 10-12-2014 - Harish Tandon, J. Shri Kartik Kurmi and S. Banerjee, for the Petitioner. Shri R.N. Das, for the Respondent. ORDER A short point involved in this writ p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The said order is challenged before the CESTAT and an application seeking the dispensation of pre-deposit is also taken out therein. The order impugned in this writ petition pertains to the disposal of an application seeking dispensation of the pre-deposit on the ground that neither the adjudicating officer nor the Tribunal can make out a case which has not been made out by the authority in the show cause notice. 5. The petitioner has gone further to say that the direction to the deposit 25% of the duty confirmed is illegal, arbitrary and is an outcome of a closed mind. According to the petitioner when a strong prima facie case has been made out direction to deposit any amount as condition to maintain and/or entertain the appeal by the CESTAT amounts to undue hardship which has not been considered by the Tribunal. 6. Mr. Das, learned advocate for the authority submits that the Works Contract (Composition Scheme for Payment of Service Tax) Rules, 2007 has a statutory flavour and placing reliance thereupon in course of the adjudication is justified and, therefore, the authority have not committed any wrong in relying thereupon. According to Mr. Das, the statutory rules can be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essee has not exercised the option to pay the concessional rate of Service Tax under the scheme envisaged under the aforesaid rules and, therefore, is not entitled to get the benefit thereof. 11. My attention is drawn to an appeal filed by the CESTAT where the petitioner has categorically taken a plea that the findings recorded by the adjudicating officer, is outside the purview of the show cause notice. The issuance of the show cause notice is not a mere formality or casual exercise. It is a foundation of proceeding initiated against the noticee and inviting the noticee to disclose his defence. Therefore, the show cause notice must clearly, lucidly and explicitly contains the offences and/or charges prima facie found against the noticee in order to give the opportunity to disclose the statement of defence on the aforesaid allegation. Any extraneous matter which was never made a foundation for initiation of the proceeding cannot be taken into account as it would amount to punishing a person without affording an opportunity to meet the same. In other words, if a person is punished on a ground not indicated in the show cause notice, he has no occasion to plead the defence against ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tiated against the noticee and invocation of any rule which does not find place in the said show cause notice is impermissible and cannot withstand on the anvil of legal parameters. 15. This Court does not find from the show cause notice that there is any reflection of Rule 3(3) of the said rules which could only see the light of the day in the order of the adjudicating authority. Though Mr. Das was much vocal in saying that during the recording of the evidence of the officer of the noticee, the offence to the said provision has been recorded but this Court does not find the aforesaid submission to be tenable. If in the preceding page of the show cause some recording which may justify the invocation of the aforesaid rules was apparent, there is no difficulty in including the aforesaid violation in paragraph 7 thereof where the authority jotted down the violation of the specific provision of the Act. 16. Mr. Das tried to impress the Court that the CESTAT has relied upon certain judgments of the Constitution Bench of the Supreme Court for the proposition that the omission to exercise option disentitled the assessee to have the benefit under the exemption. There is no quarrel to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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