TaxTMI 
TaxTMI 
2016 (9) TMI 1413
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....after the respondent company stopped payment of service tax to the department. Hence, the Assistant Commissioner of Service Tax/ 2ndappellant herein sent a communication vide C.No. IV/16/13/ 2014/Gr.VI dated 28.03.2014, directing the respondent company to remit service tax for the months from January 2014 to March 2014, for the reasons stated in the notice, failing which, appropriate action would be initiated for recovery. On receipt of the aforesaid notice dated 28.03.2014, the respondent company filed W.P. No. 9496 of 2014 before this Court, challenging the notice. By order dated 02.04.2014, the writ petition was allowed. 3. Pursuant to the orders passed by the Writ Court, the respondent company filed a reply on 17.04.2014, to the second appellant, by raising various objections to the said notice. On receipt of particulars received from the respondent company, the second appellant fixed the quantum of service tax payable by the appellant, was ascertained as Rs. 65,35,796/-. As per the Circular No.80/1/ 2005-ST dated 10.08.2005 of the Central Board of Excise and Customs, Department of Revenue, Ministry of Finance, powers of adjudication on various authorities have been specified,....
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....ercising adjudicating powers, by Central Excise Officers. In the meantime, a Show cause notice No.65/2015 in C.No. IV/09/103/2015-ST.III Adj. dated 12.10.2015, was issued by the first appellant, calling upon the respondent company, as to why service tax amounting to Rs. 65,35,796/- should not be demanded from them, for the period January 2014 to March 2014. Challenging the said show cause notice, W.P.No.36494 of 2015 has been filed by the respondent company. 5. Learned counsel further submitted that the impugned show cause notice issued by the first appellant is in accordance with the provisions of the Circular No. 80/1/2005-ST dated 10.08.2005 based upon the Notification No.30/05-ST dated 10.08.2005 and the subsequent Circular No.130/12/2010-ST dated 20.09.2010. In support of the above submissions, learned counsel for the appellant relied on the judgments of the Hon'ble Supreme Court, in the case of Metal Forgings vs. Union of India, reported in 2002 (146) ELT 24 SC and of the Delhi High Court, in the case of J.K. Synthetics Limited vs. Union of India, reported in 2009 (234) ELT 417 (Delhi), etc. Hence, he prayed to set aside the order dated 04.02.2016 passed by the Writ Cour....
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....nt that the petitioner company has not even submit their objections that they are not entitled to pay service tax. 8. In such view of the matter, the petitioner company is directed to submit their objections as to how they are not liable to pay the service tax, by treating the impugned proceedings as a show cause notice, within a period of three weeks from the date of receipt of a copy of this order. Thereafter, the respondent shall consider the same and pass orders in accordance with law, after giving an opportunity of personal hearing to the petitioner company. The respondent shall not take any coercive steps to recover the service tax till the final orders are passed. 9. The writ petition is disposed of, with the above direction. No costs. Consequently, connected Miscellaneous Petitions are closed. " 9. Pursuant to the above order passed in W.P.9496 of 2014, the second appellant sought for details from the respondent company, on various dates. On receipt of the said particulars, the appellant department fixed the quantum of service tax to be payable by the respondent company as Rs. 65,35,796/-. Since the quantum of service tax payable by the respondent company exceeded Rs. 50....
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....10. In the abovesaid circumstances, the appellants have prayed to provide them, an opportunity, to establish their case, as stated supra, in the modification petition filed in W.P. No. 9496 of 2014, before the Writ Court, as the subsequent order passed by the writ court in W.P. No. 36494 of 2015 is contrary to the notification and the decisions of the Hon'ble Supreme Court. Learned counsel for the respondent has objected to the above contentions. 11. Learned counsel for both the parties made submissions on the merits of the case, without prejudice to the above preliminary objection. However in the notification of the department, it is clearly stated that depending upon the monetary limit, Central Excise Officers have been authorised by the Board to issue notices under Section 73 of the Finance Act, 1994. Circular No. 80/1/2005-ST dated 10.08.2005, based upon the Notification No.30/05-ST dated 10.08.2005, has been subsequently modified vide Circular No.130/ 12/2010-ST dated 20.09.2010. Section 73 of the Finance Act, 1994, mandates determination of specific amount in the notice. In support of his submission, learned counsel for the department relied on paragraph 10 of the judgme....
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.... notice on 12.10.2015. It is the contention of the department that the Miscellaneous petition filed to modify the order passed by the writ court has to be considered on merits. 13. In the decision of the Hon'ble Supreme Court in the case of State of Kerala vs. M.K. Kunhikannan Nambiar Manjeri Manikoth, Naduvil (Dead) & Ors., reported in (1996) 1 SCC 435, wherein, at paragraph 8, it is observed as follows :- ....... "It is well settled that if a Ct. acts without jurisdiction, its decision can be challenged in the same way as it would have been challenged if it had acted with jurisdiction, i.e., an appeal would lie to the Ct. to which it would lie if its order was with jurisdiction." 14.In Hon'ble Supreme Court in the case of State of West Bengal vs. Karan Singh Binayak, reported in (2002) 4 SCC 188, it is held that inherent power under Section 151 of the CPC cannot be invoked, to re-open settled matters. At paragraph 17, the Hon'ble Apex Court held as follows :- "17. ...It can, thus, be seen that after the preparation of record-of-rights, not only the appellants did not take any steps and slept over the matter but various steps as above were taken by the respondents ....