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2016 (4) TMI 1078 - DELHI HIGH COURT

2016 (4) TMI 1078 - DELHI HIGH COURT - 2016 (41) S.T.R. 785 (Del.) - Seeking declaration that the search conducted and summons issued to be illegal and ultra vires to the provisions of the Finance Act, 1994 - Wrong availment of exemption under Notification No. 26/2012-ST dated 20th June, 2012 from payment of Service tax on some of the services provided by claiming to be a “tour operator” - evasion of payment of service tax.

Held that:- it is not clear whether the DGCEI was conscious o .....

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at 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 further coercive action against the Petitioner .....

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he DGCEI. - Adjourned for next hearing - W.P. (C) No. 756 of 2016 and C.M. Nos. 3281 of 2016 (Exemption) & 3280 of 2016 (Stay) - Dated:- 28-1-2016 - S. MURALIDHAR AND VIBHU BAKHRU, JJ For the Petitioner : Mr. J.K. Mittal, Advocate with Mr Rajveer Singh, Advocate. For the Respondent : Mr Jasmeet Singh, CGSC with Ms Astha Sharma, Advocate for UOI. Ms Pooja Bhaskar, Advocate for DGCEI/Respondent with Mr Atul Singh, Deputy Director with Mr Sunil Joshi, SI-6 DGCEI. ORDER CM 3281/2016 (Exemption) 1. A .....

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iness 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 (Headquart .....

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the invoices were seized from which it was concluded that from the years 2011-12 till 2015-16 (till 6th January, 2016) the Petitioner had wrongly availed of exemption (under Notification No. 26/2012-ST dated 20th June, 2012) from payment of service tax on some of the services provided by claiming to be a tour operator and had avoided payment of service tax to the extent of ₹ 17 crores. The DGCEI stated in the remand application that the Petitioner had not remitted service tax collected fro .....

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of the Petitioner was searched on two earlier occasions. He states that the Petitioner has been filing the service tax returns on a regular basis availing the exemption 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 .....

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ing Counsel for the DGCEI is not available in Delhi today, the further hearing of the case should be deferred. However, Mr Atul Singh, Deputy Director DGCEI and Mr Sunil Joshi, SI-6, DGCEI were present in the Court along with the relevant records, which were perused by the Court. This includes a note prepared proposing the search of the premises and a separate note prepared proposing the arrest of the MD of the Petitioner. 8. It is not clear from these notes that prior to going in for the extrem .....

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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 in t .....

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