TMI Blog2016 (4) TMI 1078X X X X Extracts X X X X X X X X Extracts X X X X ..... powers of arrest without warrant under Section 90(1) read with Section 89(1)(ii) of the Finance Act 1994 presupposes the arrival of a satisfaction regarding the Assessee having collected service tax but failing to pay to the Department as envisaged in Section 89(1)(d) thereof. The question that would arise is whether there can be a pre-determination regarding the offence under Section 89(1)(d) of the Finance Act 1994 without issuance of a notice under Section 73(1) regarding the alleged evasion of payment of service tax, followed by an adjudication. In such circumstances, the Court is satisfied that the Petitioner has made out a prima facie case and accordingly an interim direction is hereby issued restraining the DGCEI from taking any fur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g a declaration that the search conducted by the DGCEI, Respondent No.2, on the business premises of the Petitioner on 19th January 2016 apprehending evasion of payment of service tax by the Petitioner, as well as the summons issued to the Petitioner on 19th 21st January 2016 by the DGCEI to be illegal and ultra vires to the provisions of the Finance Act, 1994. 5. It is stated by Mr J.K. Mittal, learned counsel appearing for the Petitioner, that Mr. Pawan Malhan, the Managing Director (MD) of the Petitioner was arrested by the Senior Intelligence Officer DGCEI (Headquarters) on 20th January, 2016 and continues to be in custody. He has drawn the attention of the Court to the remand application filed before the Magistrate by the DGCEI in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mption under the aforementioned notification by claiming to be a tour operator. The Petitioner was issued a notice under Section 73 (1) of the Finance Act 1994 on 17th November 2014 by the CST demanding a service tax of ₹ 34,00,425 which demand was confirmed by an order dated 21st December, 2015. This order is being challenged by the Petitioner. Another show cause notice dated 2nd November, 2015 demanding a service tax of ₹ 5,33,541 issued by the CST is yet to be adjudicated. It is further stated that a refund claim by the Petitioner to the extent of ₹ 35 lakhs is still pending with the CST. In the above circumstances, it is prayed that no further coercive steps be taken against the Petitioner. 7. Ms. Pooja Bhaskar, lea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of a notice under Section 73 (1) regarding the alleged evasion of payment of service tax in the sum of ₹ 17 crores, followed by an adjudication. 9. In the circumstances, the Court is satisfied that the Petitioner has made out a prima facie case and accordingly an interim direction is hereby issued restraining the DGCEI from taking any further coercive action against the Petitioner or any of its officers or employees till the next date of hearing. 10. It is clarified that as far as the proceedings consequent upon the arrest of the MD of the Petitioner pending in the Court of the learned ASJ is concerned, it will proceed in accordance with law and this Court expresses no opinion in that regard. Further, it is made clear that the P ..... X X X X Extracts X X X X X X X X Extracts X X X X
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