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TMI Blog2015 (9) TMI 365X X X X Extracts X X X X X X X X Extracts X X X X ..... e to record the excerpts from the show cause notice to ascertain as to the exact case made out therein, which runs : "7. Contravention of statutory provisions : Thus, the said M/s. Maheshwari Enterprise, Rankganj, Burdwan, WB the noticee, appeared to have contravened (a) the provisions of Section 67 and 68 of the Finance Act, 1994 as amended read with Rule 6 of the Service Tax Rules, 1994 as amended, in as much as they failed to pay the Service Tax at the rate specified in Section 66 in the required manner within the prescribed period; (b) the provisions of Section 73 of the Finance Act, 1994 as amended read with Rule 6 of the Service Tax Rules, 1994 as amended, in as much as they had ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ken 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te and total waiver. 7. Refuting the contention of Mr. Das, Mr. Kurmi, learned advocate appearing for the petitioner submits that the Tribunal has extended the date for compliance and have fixed the next date on 22nd December, 2014 and, therefore, the submission of department that the appeal stood automatically dismissed, is not correct. 8. As indicated above, the point which is involved in this writ petition is whether a new or foreign case can be made out by an adjudicating officer without affording an opportunity to the noticee to defend the charge. In a precedent paragraph, this Court have reproduced the case made out by the authorities in paragraph 7 thereof wherefrom my endeavour has failed to find out that any case of vio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng 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 such allegation and, therefore, an order of punishment offends the principles of natural justice. Whether the authority can travel beyond the case made out in the show cause notice is answered by the Supreme Court in case of Reckitt & Colman of India Ltd. v. Collector of Central Excise reported in 1996 (88) E.L.T. 641 (S.C.). in these words : "3. It will be remembered that the case of the Revenue, which the appellant had been required to meet at every stage from the show cause notice onwards, was that the said product was a preparation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... levy and recovery of duty, penalty and interest. If there is no invocation of Rule 7 of the Valuation Rules, 1975 in the show cause notice, it would not be open to the Commissioner to invoke the said rule." 14. In view of the ratio laid down in the above noted reports, it is no longer res integra that the show cause notice is the foundation of a proceeding initiated 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 aut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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. 18. Mr. Das, however, submits that if the petitioner has not pleaded in the application nor produce any document in support of his financial hardship, the authority have rightly imposed the condition by directing the petitioner to deposit 25% of the duty demand. Though financial hardship is one of the ingredients for exercising the discretion relating to dispensation of pre-deposit but cannot be a sole basis. The proviso to Section 35F does not speak of the financial hardship but speak of the undue hardship which in my view can be appli ..... X X X X Extracts X X X X X X X X Extracts X X X X
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