TMI Blog2016 (8) TMI 94X X X X Extracts X X X X X X X X Extracts X X X X ..... er the letters by which information was asked for the period in question failed to specify what information was to be provided. Consequently the SCN was "only on the basis of assumption and presumption." Consequently, the CESTAT held the SCN to be not maintainable. Department, was unable to point out how Section 72 (a) could possibly be invoked when a admittedly the return for the period April to September, 2009 had been filed on 22nd October 2009 and for the period October 2009 to March 2010 on 22nd April 2010 with the jurisdictional service tax office. Therefore, the factual basis on which the SCN was issued invoking Section 72(a) of the Act was nonexistent. Secondly, the SCN does not make out a case for invoking Section 72 (b) of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d further stating that the Respondent failed to file returns under Section 70 of the Finance Act, 1994 ( the Act‟), the impugned SCN dated 20th October, 2010 was issued invoking Section 72 of the Act. 3. For ready reference Section 72 of the Act reads as under: ...72. Best Judgment Assessment If any person liable to pay service tax, - a. fails to furnish the return under Section 70; b. having made a return, fails to assess the tax in accordance with the provisions of this Chapter or rules made thereunder. The Central Excise Officer, may require the person to produce such accounts, documents or other evidence as he may deem necessary and after taking into account all the relevant material which is available ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Department has issued letters dated 03.06.2010, 05.07.2010, 28.07.2010,03.09.2010 and 01.10.2010 by giving reference to the previous SCN and requested the Respondent to furnish following month wise information/details/documents for the period from April 2009 to March 2010 , without even mentioning the information/details required by the Department. In the circumstances, the Department was requested to send its audit team and prepare the details as required. 7. By an order dated 4th January 2011 in W.P. (C) No. 16 of 2011 a Division Bench of this Court directed the adjudication authority to first decide the preliminary objection raised by the Respondent that the SCN could not have been issued in the prevailing factual matrix. 8. By ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... intainable. 9. It has been noted by the Commissioner (Appeals) in the order dated 1st March, 2012 that in the letters sent by the Department to the Respondent calling for information, the specific nature of the information required was not mentioned. Yet, it was held that since the second SCN was in continuation of the first SCN dated 8th April 2010, it could not be said that the Department had not called for specific information. Further according to the Commissioner (Appeals) the returns filed in ST-3 did not contain the full particulars and various columns were left blank. Alternatively it was held: ...for the sake of discussion, even if we presume that the second SCN is not maintainable because the department has assessed the tax li ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uently, the question of adopting best judgment assessment did not arise. Thirdly, there could be no failure by the Respondent to provide information when the letters of the Department failed to specify the specific information that was to be provided. 12. In Mega Cabs Pvt. Ltd. v. Union of India 2016 (43) STR 67 (Del.), a Division Bench of this Court observed in the context of the applicability of Section 72 as follows: 17. Under Section 72 of the FA, one scenario is where a person who is liable to pay service tax fails to furnish a return under Section 70. The second is where such person has filed a return but fails to assess the tax in accordance with the provisions of this Chapter or rules thereunder . The Assessing Officer (AO) ..... X X X X Extracts X X X X X X X X Extracts X X X X
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