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2007 (9) TMI 684 - GAUHATI HIGH COURT

2007 (9) TMI 684 - GAUHATI HIGH COURT - TMI - Dated:- 10-9-2007 - B. K. Sharma, J. JUDGEMENT B. K. Sharma, J. Heard Mr. R. D. Soni, learned counsel along with Mr. S. Sarma, learned counsel for the petitioner. Also heard Mr. D. Das, learned Central Government Standing Counsel representing the respondents. Perused the materials on record. The petitioner, a Public Limited Company incorporated under the Companies Act, 1956, has invoked the writ jurisdiction of this Court assailing the legality and v .....

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bally as well as in writing in the matter in respect of an enquiry being conducted for evasion of service tax/contravention of Chapter- V and VA of the Finance Act, 1994 and the Rules framed there under. The petitioner has also challenged the Annexures-8, 10 and 13 letters issued by the authority to it as replies to the queries and questions raised by the petitioner upon receipt of the summons. For a ready reference, one of the summons dated 14.12.2006 (Annexure-4 to the writ petition) and one o .....

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of Section 83 of the Finance Act read with Section 14 of the Central Excise Act, 1944. It was pointed out in the letter that the summons were issued not only for personal appearance, but also for submission of records and documents for the period in question and the failure on the part of the petitioner to produce the same. The purported admission on the part of the petitioner through its consultant about its engagement as Marketing Agent for Sale of Tripura Online Lottery Tickets was also indi .....

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and Profit and Loss Accounts of M/s Videocon International Ltd., for the financial year 2004-05, 2005-06 and 2006-07 (up to November, 2006). iv) Statement showing total amount of sale, total amount of Prize Money disbursed and the total amount of guarantee money paid to the Govt. of Tripura in respect of each draw of 'Tripura Govt. Online Lottery' organized for the period from December, 2004 to November, 2006. v) Details of down-line agents, sub-agents, stockist or sub-distributors appoi .....

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s/services rendered by you in relation to Tripura Govt. Online Lottery are taxable or not taxable. The objective of investigation is to collect all the relevant facts and documents so as to enable to reach a conclusion either to drop the case or go further. Your non-cooperation in the investigation is not conducive to the proper conduct of the investigation. Therefore, it is requested that the documents listed in this letter be sent without further delay and also to comply with the summons." .....

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licability of the Service Tax on promotion and marketing of online lottery business, the impugned proceeding is not sustainable in law. THE petitioner has also placed reliance on decision of the Apex Court reported in AIR 1999 SC 22 Whirlpool Corporation Vs. Registrar of Trade Marks. THE further case of the petitioner is that since in respect of another region, similar summons have been withdrawn by the respondents with liberty to issue fresh summons according to law, the impugned summons are al .....

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een stated that the Central Government by its notification dated 10.2.1999 has empowered all the Central Excise Officers not below the rank of Superintendent of Central Excise to summon persons and hold enquiries, to give evidence, to record statement relating to any proceeding. The decision in Whirlpool Corporation (supra) has been pressed into service so as to contend that the jurisdiction of the High Court in entertaining the writ petition under Article 226 of the Constitution of India in spi .....

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do so or has assumed the jurisdiction without any legal foundation. If it is found that the authority has exercised the jurisdiction properly, there is no question of falling back on the proposition relating to jurisdiction of the High Court under Article 226 of the Constitution of India. According to the petitioner, some of the documents mentioned in the impugned summons and the letters dated 28.3.2007 (Annexure-13 to the writ petition) are not available with the petitioner. Learned counsel fo .....

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resisted by Mr. Das, learned Central Government Standing Counsel appearing for the respondents. From the materials on record, what has appeared is that the authorities want to carry out the enquiry relating to evasion of Service Tax/Contravention of Chapter- V and VA of the Finance Act, 1994 and the Rules framed there under. It has been indicated in the summons that the petitioner is in possession of facts and/or documents and/or things which are relevant for the purpose of enquiry. Being empowe .....

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ty which has issued the summons and the impugned letters. In fact, by Annexure-14 letter dated 11.4.2007, the petitioner requested the authority at least 15 days time to arrange the required documents. After assuring the authority in that matter, the petitioner invoked the writ jurisdiction of this Court assailing the very authority of the officer who has issued the summons. It is an admitted position that the present enquiry initiated by the D.G.C.E.I. has been approved by the Govermental autho .....

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ompletion of the investigation, if the petitioner is found to be liable for payment of Service Tax on account of services rendered by it to the Government of Tripura in running the online lottery business, show cause notice will be issue to it, in which eventually, the petitioner will get opportunity to substantiate its claim before the adjudicating authority. Even thereafter, if the petitioner is aggrieved by any decision, it will be open for it to prefer appeal before the appellate authority. .....

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tion 14 of the Central Excise Act, 1944. According to the petitioner, the enquiry resorted to by the authority is a fishing enquiry without even formation of prima facie opinion. The impugned summons and the letters have been issued for carrying out the enquiry/investigation relating to evasion of Service Tax/Contravention of Chapter- V and VA of the Finance Act, 1994. The matter is only at the investigation stage and to facilitate the same, if the petitioner has been asked to produce the docume .....

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mpugned summons and the letters have been issued without jurisdiction, the petitioner is bound to respond to the same by making appearance and produce documents which will advance the investigation so as to come to a prima facie finding as to whether there is any evasion of Service Tax/Contravention of Chapter- V and VA of the Finance Act, 1994. Thereafter, the matter will be adjudicated by issuing show cause notice to the petitioner in which eventuality the petitioner will also get ample opport .....

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