TMI Blog2018 (2) TMI 86X X X X Extracts X X X X X X X X Extracts X X X X ..... ication is maintainable? - Held that: - There can be no dispute to the legal position that a review petition is not an appeal in disguise. The grounds of review are clearly circumscribed under Order 47 Rule 1 CPC. However, it has to be borne in mind that the present proceedings is a writ proceedings arising under a taxation statute. The prayer sought for in M.P.No.1 of 2015, in my considered opinion, cannot be construed as a prayer to review the order passed in the writ petition. On a reading of the proceedings dated 28.03.2014, it is clear that it is only an intimation. This is on account of the fact that the petitioner stopped paying service tax from 01.01.2014. Therefore, the second respondent requested the petitioner to pay service tax, failing which stated that action for recovery will be initiated. Thus, the communication/intimation dated 28.03.2014 cannot be treated as a show cause notice nor can be treated as a demand but only as an intimation - the petition for modification cannot be construed as a review petition but only to modify the earlier order by permitting issuance of a show cause notice instead of treating the communication dated 28.03.2014 as a show cause noti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 015 in W.P.No.9496 of 2014. The said writ petition namely, W.P.No.9496 of 2014 was filed by the petitioner, challenging the proceedings dated 28.03.2014, by which, the second respondent stated that it is noticed that the petitioner's have paid the service tax for the period from 01.07.2012 to 31.12.2013 under protest and stopped paying service tax for the period from 01.01.2014 in view of the new agreement dated 26.12.2013 entered into with the service receiver and that the non-payment of the service tax appears to be incorrect since the activity of generating electricity does not amount to the process of manufacture or production of the goods and the activity undertaken by the petitioner does not fall under the negative list as contended by them and therefore, the petitioner was requested to pay the service tax for the months of January to March 2014 immediately (on or before 31.03.2014) under intimation to the second respondent, failing which appropriate action to recover the same will be initiated against the petitioner. 2.The writ petition was disposed of by order dated 02.04.2014 by directing the petitioner to submit their objections as to how they are not liable to pay ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any orders from the Court, the impugned show cause notice dated 12.10.2015 was issued which has been challenged in this Writ Petition. Therefore, it is submitted that the issue would be as to whether the petition for modification is maintainable and it is for the revenue to sustain such petition by advancing arguments at first which will be countered by the petitioner suitably. The learned counsel for the petitioner would fairly submitted that if M.P.No.1 of 2015 is to be allowed by this Court and the order in W.P.No.9496 of 2014 is to be modified, then W.P.No.36494 of 2015 is to be dismissed and therefore, the revenue should first argue M.P.No.1 of 2015. In the light of the said submission, the Court called upon the learned Senior Panel Counsel for the revenue to make submissions on the modification petition in M.P.No.1 of 2015. 5.The learned Senior Panel Counsel appearing for the respondents submitted that the impugned order in W.P.No.9496 of 2014 dated 28.03.2014 is only an intimation/communication and it is not a show cause notice. In this regard, the learned counsel referred to Section 73(1) of the Finance Act and relied on the decision in the case of Metal Forgings Vs. Un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reliance was placed on the decision of the Hon'ble Supreme Court in the case of Public Service Commission, Uttaranchal Vs. Mamta Bisht and others reported in (2010) 12 SCC 204. Further, it is submitted that the law will protect only the vigilant and a review petition if has to be filed, the period of limitation is only 30 days and the present application filed by the petitioner beyond the said period without an application for condonation of delay is not maintainable. The writ petition was disposed of on 02.04.2014 and after 17 months, the miscellaneous petition has been filed and the same is liable to be rejected. In support of such contention, reliance was placed on the decision of the High Court of Delhi in the case of Smt.Sarla Devi Jain Vs. Union of India (UOI) reported in AIR 2006 Delhi 12. Further, it is submitted that the writ petitioner did not contend that the proceedings dated 28.03.2014 was a show cause notice but it is the revenue which contended so and recorded by the learned Judge in Paragraph No.4 of the order dated 02.04.2014. The learned counsel referred to Order 47 Rule 1 of CPC and pointed out that none of the parameters mentioned therein stand attracted to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d by notification in the official gazette. One such notification being notification No.30/2005-ST, dated 10.08.2005 which fixes the monetary limit of Central Excise Officer for the purposes of adjudging penalty and not tax. The circular relied on by the revenue dated 10.08.2005 is not a notification under Section 83(A) and therefore cannot have force of law. On the above grounds, the learned counsel submitted that the petition for modification is liable to be dismissed and consequently, the impugned show cause notice has to be held to be bad in law. 8.In reply, the learned counsel for the revenue would submit that much of the argument is directed against the counsel who appeared for the revenue in the earlier proceedings and the writ petition was disposed of at the admission stage and at no point of time, the counsel made a submission that the impugned proceedings dated 28.03.2014 is a show cause notice. However, it is the Court which directed the petitioner to treat the impugned proceedings as a show cause notice and since the communication dated 28.03.2014 is not a show cause notice, the Department be granted liberty to the appropriate authority to issue a show cause notice qu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Therefore, I am of the view that the petitioner was not prejudiced in any manner on account of no action being taken by the Revenue between 16.09.2014 and 02.09.2015. 11.The next aspect to be seen is as to whether the petition for modification is maintainable. In Puran Singh's case, the Hon'ble Supreme court pointed out that many procedures prescribed in the Code of Civil Procedure are responsible for delaying the delivery of justice and causing delay in securing the remedy available to a person who pursues such a remedy and the High Court should be left to adopt its own procedure for granting relief to the persons concerned and the High Court is excepted to adopt the procedure which can be held to be not only reasonable but also expeditious. 12.Learned counsel for the writ petitioner concedes to the legal position, but his submission is that though the provision of Civil Procedure Code are not applicable in writ jurisdiction by virtue of provisions of Section 141 CPC, the principles enshrined therein are applicable (see Public Service Commission, Uttaranchal vs. Mamta Bisht and others (supra)). Expanding his argument further on the same platform, the learned counse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce. In the place of such proceedings , a show cause notice is sought to be issued by the appropriate authority after quantifying the amount which is mandatory under Section 73(1) of the Act. Without a proper show cause notice, adjudication cannot take place. 15.Furthermore, on a reading of the proceedings dated 28.03.2014, it is clear that it is only an intimation. This is on account of the fact that the petitioner stopped paying service tax from 01.01.2014. Therefore, the second respondent requested the petitioner to pay service tax, failing which stated that action for recovery will be initiated. Thus, the communication/intimation dated 28.03.2014 cannot be treated as a show cause notice nor can be treated as a demand but only as an intimation. It would have been well open to the petitioner assessee to respond to the letter dated 28.03.2014 stating that they are not liable to pay service tax. Instead they approached this Court and challenged the said proceedings. In my considered view, the petitioner cannot be stated to be aggrieved by the communication dated 28.03.2014. Had the petitioner sent a reply to the communication, in all probabilities, they would have been visited w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... id stand, the Court verified the order sheet and found that the Court has recorded on 21.07.2016 that there was a request for modification petition to be heard. Therefore, the interest of revenue cannot be put to jeopardy on account of technicalities or on account of the fault committed by the Court in not listing M.P.No.1 of 2015 along with this writ petition. 18.During the course of argument, the learned counsel for the revenue submitted that the second respondent has no jurisdiction to issue a show cause notice on account of the circular dated 10.08.2005. This contention has not been specifically pleaded in the affidavit filed in support of M.P.No.1 of 2015 and has been vehemently opposed by the learned counsel for the petitioner by placing reliance on the judgment in the case of Kalyan Singh Chouhan vs. C.P.Joshi reported in 2011 (11) SCC 786 on the object and purpose of pleadings. 19.I have my own doubts as to whether the decision in the case of Kalyan Singh Chouhan vs. C.P.Joshi arising out of an election petition and the observations contained therein with regard to the object and purpose of pleadings can be applied to a writ proceedings where decisions are taken based ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... impugned notice. Firstly the petitioner without any demur furnished information sought for by the Department and based on such information the impugned notice has been issued. I hardly see any mischief in doing so. Change of colour is alleged. Unless and until a stand is specifically taken and subsequently a totally different stand is taken, there could be a change. In the present proceedings no stand could be stated to have been taken in the proceedings dated 28.03.2014. It being only an intimation, nothing more flows from it. The intimation to pay service tax is on account of the conduct of the petitioner in abruptly having stopped remitting service tax from 01.01.2014. Thus, it is clear that the allegation which the petitioner has to meet has been spelt out for the first time in the impugned show cause notice. For the above reasons, the argument put forth by the learned counsel for the petitioner cannot be countenanced. 22.The learned counsel for the petitioner contended that the impugned show cause notice could not have been issued without leave of the Court, it amounts to by passing the order of this Court and is a wilful disobedience and disregard to the order of the Cou ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
