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TMI Blog2015 (10) TMI 1113X X X X Extracts X X X X X X X X Extracts X X X X ..... ESTAT) by raising the following questions of law for adjudication. "i) Whether the Honourable CESTAT is justified in setting aside the Speaking Order dated 05.12.2002 passed by the competent adjudicating authority and confirmed by appellate authority, on the short ground of non-issuance of show cause notice when the respondent was suitably put on notice vide letter dated 17.08.2001 about the correct classification of the services provided by him and payment of service tax @ 5% for the period specified therein (from 07.07.1997 to 30.06.2001) and respondent filed 20 page explanation and fully utilized opportunity of personal hearing in view of the judgment of the Honourable High Court of Bombay in the case of M/s.Devidayal Rolling & Refiner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eer. The respondent approached the Department seeking for issuance of Form ST-1 for registration in the category of Technocrats Technical Consultancy under Section 69 of the Finance Act, 1994. The Superintendent, Technical from the Office of the Deputy Commissioner of Central Excise, Vijayawada Division issuing a reply stating that respondent- firm could not be given registration as a scientific or technical consultancy services and suggested that their services would fall under the category of Consulting Engineer. The superintendent also advised the respondent to obtain registration as a consulting engineer for the services under the category of Consulting Engineer. In their anxiety, the respondent tried to justify with the authorities how ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e may be, Deputy Commissioner of Central Excise has in consequence of information in his possession, reason to believe that the value of any taxable service assessable in any prescribed period has escaped assessment or has been under-assessed or service tax has not been paid or has been short-paid or any sum has erroneously been refunded. " he may, in cases falling under clause (a), at any time within five years, and in cases falling under clause (b), at any time within one year, from the relevant date, serve notice on the person chargeable with the service tax which has escaped assessment or has been under-assessed or has not been paid or has been short- paid, or to whom any sum has been erroneously refunded, requiring him to show cause w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al Regulations made therein, as such, the order of the Tribunal is unassailable and does not call for any interference by this Court. A perusal of the material placed on record reveals that it is an undisputed fact that the Tribunal had categorically recorded that no show cause notice was issued at any point of time and the order of the Commissioner was set aside on that ground. A perusal of Section 73 of the Finance Act which is extracted above leaves no manner of doubt that there is a requirement of issuance of notice by an authority who is not below the rank of Assistant Commissioner / Deputy Commissioner. The notice is required to state whether the noticee falls within the category of Section 73(1)(a) or 1(b) of the Act and further spe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 012 and it was numbered in the year 2015, hence, we do not find any justification at this length of time to entertain this appeal. Though Section 35 of the Act as made applicable to Service Tax appeals came into statute book with effect from 20.10.2010 by virtue of Section 69 of the Finance Act, 2011, the spirit of the provision can be taken into consideration. It is admitted by the learned counsel for both the parties that there is a prohibition contained in the Circular issued in exercise of the power under Section 35 of the Act. In the present case, the tax demand is only Rs. 7.00 lakhs and the prescribed limit is Rs. 10.00 lakhs and inasmuch as the tax demand being within the prescribed limit, we do not see any merit to entertain the ap ..... X X X X Extracts X X X X X X X X Extracts X X X X
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