TMI Blog2018 (9) TMI 1520X X X X Extracts X X X X X X X X Extracts X X X X ..... y amount of service tax was paid by the Petitioner on the basis of forged/ fabricated/bogus challans. This would necessarily have to await adjudication order passed after following the principle of natural justice. Thus, the invocation of Section 87 of the Act, at this stage, would in these facts, be premature. Our Court has in Quality Fabricators & Erectors [2015 (12) TMI 494 - BOMBAY HIGH COURT], has held that Section 87 of the Act, can only be invoked for adopting coercive proceedings for recovery after the authorities determined the amount payable by an assesee on an adjudication order. Without adjudication, no steps for coercive recovery under Section 87 of the Act can be taken by the authorities. The impugned notice dated 30th A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is contrary to and in defiance of the binding decisions of this Court in Quality Fabricators Erectors v/s. Dy. DIR, DGCEI, 41 STR 11, Lawson Tours Travels (I) P. Ltd.,v/s. Dy. DIR, DGCEI, 317 ELT 248, ICICI Bank Ltd. V/s. Union of India 38 STR 907 and Cleartrip (P) Ltd., v/s. Union of India 42 STR 948. 4. Briefly, the fact leading to this Petition, are as under: (a) The Petitioner is a partnership firm. It is engaged in the business of renting, transport services, management services etc. and is duly registered with the authorities under the Act. Petitioner is paying service tax by filing periodic returns under Section 70 of the Act; (b) On 8th September, 2017 the Officer of Respondent No.2 carried out a search operatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 017. This notice was issued in terms of proviso to Section 73(l) of the Act. It also records the fact that an amount of ₹ 19,19,676/out of the above, had already been recovered, consequent to the impugned notice dated 30th August, 2018. 6. It is in the above facts that, Mr. Raichandani, learned Counsel in support of the Petition, submits as under: (a) that the impugned notice dated 30th August, 2018 is without jurisdiction inasmuch as Section 87 of the Act, has been invoked prior to issue and/or adjudication of the show cause notice. Therefore, the impugned notice dated 30th August, 2018 is not sustainable in law. In support, he relied upon the decisions of this Court in Quality Fabricators Erectors (supra), Lawson Tours T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... forged and bogus challans. Thus, to the above extent, there was no need to await an order on adjudication proceeding. Therefore, the impugned notice ought not to be set aside and/or interfered with at this stage; (b) The invocation of Section 87 (b)(i) of the Act by the Respondent in the present facts, was justified as what is being sought to be recovered is only an amount of service tax liability which is due and not been paid as admitted by the partners of the Petitioner. Thus, it is the clear case where Section 87 (b)(i) of the Act being applicable to the present facts; and (c) The decisions of this Court relied upon by the Petitioner are inapplicable to the facts of this case for the reason that in none of them, was there any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... spond to the same and satisfy the authorities that the prima facie, view as formed by them and indicated in the notice, inter alia, on the above ground was not justified. Therefore, this would most certainly be a matter of adjudication. At the stage of adjudication, the Petitioner would have an opportunity to explain the meaning and significance of the alleged admission. Therefore, till such time, as the show cause notice is adjudicated, it cannot be conclusively stated that any amount of service tax was paid by the Petitioner on the basis of forged/ fabricated/bogus challans. This would necessarily have to await adjudication order passed after following the principle of natural justice. Thus, the invocation of Section 87 of the Act, at thi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icated challans. Thus, the issue is still open and it cannot be said that any amount which has been crystallized as due to the Government. The crystallization of the amount will take place only when an adjudication order is passed. 12. It is entirely possible that in response to the show cause notice dated 8th September, 2017 and at the hearing before the adjudicating authorities, the Petitioner would be able to establish that, prima facie, the view formed in the show cause notice with regard the service tax being discharged on the basis of false, forged and fabricated challans, was not justified. In such a case, it is likely that demand attributable to the statements made by the partners may be set aside. Thus, the issue raised by the P ..... X X X X Extracts X X X X X X X X Extracts X X X X
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