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2015 (10) TMI 1113 - ANDHRA PRADESH HIGH COURT

2015 (10) TMI 1113 - ANDHRA PRADESH HIGH COURT - 2015 (40) S.T.R. 232 (A. P.) - Appeal under Section 35G under Central Excise Act, 1944 Respondents applied for registration under the category of Technocrats Technical Consultancy Department contended that the services rendered fall under the category of Consulting Engineering Demand of tax made from the Respondents without issuing SCN as required under Section 73.

Held That:- No SCN was issued to the Respondent placing reliance .....

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l Excise Act, 1944 as substituted by the Finance Act, 2003 (for brevity the Act) is filed at the instance of the Department against the Final Order No. 558 / 2007, dated 08.05.2007 passed by the Customs, Excise and Service Tax Appellate Tribunal, South Zonal Bench, Bangalore (for short CESTAT) 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 .....

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of M/s.Devidayal Rolling & Refineries Pvt. Ltd. vs. A.V. Borkar, Superintendent, Central Excise & Others reported in 1983(12) ELT 338 (Bom), though the notice does not in so many terms describe it as a show cause notice, contents of the said notice is eloquent enough to indicate nothing but that ii) Whether the Honourable CESTAT is justified in setting aside the order in appeal passed by the Commissioner (A) and the speaking order passed by the original adjudicating authority on the sho .....

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missioner of Customs reported in 2001 (132) ELT 206 (Trib) wherein the Tribunal held that the plea of non-issuance of show cause notice has no force since the applicant was afforded an opportunity of personal hearing before the case is decided and thus principles of natural justice were fully complied with, more so when respondent has not raised the issue before original adjudicating authority and appellate authority? The respondent is a partnership firm consisting of a Diploma holder, a Graduat .....

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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 their services cannot be termed as Consulting Engineer. The Deputy Commissioner of Customs and Central Excise issued an order to the respondent demanding service tax for the period from 07.07.1997 to 30.06.2001. The .....

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ble services escaping assessment:- (1) If a) the Assistant Commissioner of Central Excise or, as the case may be, the Deputy Commissioner of Central Excise has reason to believe that by reason of omission or failure on the part of the assessee, to make a return under Section 70 for any prescribed period or to disclose wholly or truly all material facts required for verification of the assessment under Section 71, the value of taxable service has escaped assessment or has been under assessed or s .....

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en 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, requiri .....

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section(1), determine the amount of service tax due from such person (not being in excess of the amount specified in the notice) and thereupon such person shall pay the amount so determined. The learned Standing Counsel for Customs and Central Excise appearing for the appellant while admitting that no show cause notice was issued as required under Section 73 of the Finance Act, submits that the respondent had submitted a detailed explanation and it was considered and rejected quantifying the amo .....

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ules and procedural 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 th .....

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issue such notice and he is only a subordinate officer to the Deputy / Assistant Commissioner. Further, the letter dated 17.08.2001 does not satisfy the requirements of the notice as there is no allegation that a specified amount is required to be paid as service tax and even no period is mentioned therein. By no stretch of imagination, the letter dated 17.08.2001 could be treated as a show cause notice satisfying the requirement of Section 73 of the Act. As a matter of fact, this letter was is .....

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