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2017 (1) TMI 761 - MADRAS HIGH COURT

2017 (1) TMI 761 - MADRAS HIGH COURT - TMI - Natural justice - validity of SCN - SCN came to be issued ignoring various communications made between the parties for the past four years - whether the show-cause notice, on the face of it, is illegal warranting interference by this Court? - Held that: - this Court is of the view that the contention of the learned senior counsel appearing for the petitioner that the show-cause notice lacks material particulars, cannot be accepted. Whether such reason .....

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the petitioner to show cause. Absolutely no prejudice would be caused to the petitioner if they reply to the show cause notice. - At this stage, this Court cannot get into the shoes of the adjudicating authority and find out as to whether the particulars furnished in the show cause notice would necessarily warrant the petitioner to show cause or not. - The petitioner can not seek blanket relief preventing the competent authority from exercising his statutory power or discharging his dut .....

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6 issued by the first respondent calling upon them to show-cause as to why an amount of ₹ 82,49,788/- should not be disallowed and recovered under Rule 14 of the Cenvat Credit Rules 2004 r/w Rule 6(3A)(C)(iii) of CCR and Proviso to Section 73(1) of the Finance Act, 1994 and interest at the rate prescribed under Section 75 of the Finance Act 1994 and penalty under Rule 15(3) of the Cenvat Credit Rules, 2004 read with Section 78 of the Finance Act, 1994 and also penalty under Section 77 (2) .....

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questioning the show-cause notice issued by the first respondent in W.P(MD)No.121 of 2017, still this Court can entertain the writ writ petition since there is gross violation of principles of natural justice and that there is an error apparent on the face of the record. The learned senior counsel thus submitted that as the present impugned show-cause notice came to be issued ignoring various communications made between the parties for the past four years, the same is to be construed as an outco .....

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ng the show-cause notice, failed to consider those details and thus the impugned show cause notice is to be considered as in violation of principles of natural justice. Therefore, the learned senior counsel prayed for entertaining this Writ petition. Based on the above submissions, the learned Senior Counsel prayed for issuing Mandamus also in the other writ petition. 6. The learned senior counsel in support of his submissions relied on the decision of the Division Bench of Nagpur Bench of Bomba .....

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e next question that would arise for consideration is as to whether the show-cause notice, on the face of it, is illegal warranting interference by this Court. 10. In my considered view, perusal of the show-cause notice issued by the competent authority, who has absolute jurisdiction to issue the same, would reveal that there is no reason for this Court to conclude that the impugned show-cause notice is ex-facie illegal or something is wrong therein apparent on the face of it. The first responde .....

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quired for the vehicle for replacement and that the assessee was availing Cenvat Credit on input services such as Manpower Recruitment, Rent, Courier, Security Service, Machinery-Rent, Telephone Service, Labour Charges, manpower supply etc. It is also stated in the show-cause notice that the assessee had not maintained separate accounts for availing the Service tax credit on such common input services for servicing and trading(sale of spare parts). After saying so, the first respondent has also .....

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in the show-cause notice that the petitioner has availed the Cenvat credit. On the other hand, it is seen that the case of the petitioner as well as the submissions made by the learned senior counsel appearing for the petitioner is to the effect that they have not availed such Cenvat credit and they also intimated the same on various occasions to the respondents. Needless to say that this disputed question of fact has to, necessarily, be gone into and decided only by the adjudicating authority, .....

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rial particulars, cannot be accepted. Whether such reasonings stated in the show-cause notice are correct or not, is for the adjudicating authority to finally determine, after considering the objections to be filed by the petitioner while passing the order in original, of course by giving due opportunity of hearing to the petitioner. Needless to say that any view expressed in the show cause notice or opinion formed therein against the petitioner, is only a prima facie view or opinion of the auth .....

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ovided the very jurisdiction of the authority, who issued the show cause notice, is questioned or if it appears to the Court that the show cause notice, on the face of it, is erroneous and illegal. In my considered view none of the above conditions are satisfied in this case. No doubt, the learned senior counsel for the petitioner relied on the decision of the Division Bench of Nagpur Bench of Bombay High Court to contend that absence of material particulars in the show-cause notice would amount .....

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ce are relevant or material particulars and would ultimately require for adjudication, is for the adjudicating authority to consider and decide, since the adjudicating authority being the first fact finding authority has to decide the issue involved in the show cause notice after considering all the materials placed before him, however, uninfluenced by any of the views or opinions expressed in the show cause notice. Therefore, at this stage, this Court cannot get into the shoes of the adjudicati .....

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uiting the procedures, especially when a statutory remedy is available for the petitioner to go before the competent original or appellate authority, more particularly, when the factual aspects of the matter have to, necessarily, be gone into only by those authorities vested with such power under the statute. 15. At this juncture, it is relevant to quote the following decisions, which were followed by this Court in very many cases while deciding the similar issue: 1) M/s Nivaram Pharma Private L .....

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