9911796707
TMI Blog2018 (9) TMI 1520X X X X Extracts X X X X X X X X Extracts X X X X ..... mpugned notice dated 30th August 2018 attaches the Petitioner's Account in Union Bank of India under Section 87 (b)(i) of the Finance Act, 1994 (the Act), for recovery of service tax payable under the Act. 3. This, the Petitioner complains is, without jurisdiction. This for the reason that the impugned notice dated 30th August, 2018, has been issued when there is no amount adjudicated as payable under the Act after issuing a show cause notice under Section 73 of the Act. Consequently, it is the Petitioner's grievance that attachment by the impugned notice dated 30th August, 2018 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 Tour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h August, 2018, the bank i.e. Union Bank of India has deposited an amount of Rs. 19,19,676/towards service tax into the treasury. This, as directed by the impugned notice dated 30th August, 2018; and (e) Consequent to the above, on 3rd September, 2018, the present Petition was filed. 5. After the filing the present Petition, Respondent No.2 has issued a show cause notice dated 8th September, 2018, calling upon the Petitioner to show cause why service tax amount of Rs. 2,81,97,456/should not be demanded and recovered for the period 1st October, 2012 to 30th June, 2017. This notice was issued in terms of proviso to Section 73(l) of the Act. It also records the fact that an amount of Rs. 19,19,676/out of the above, had already been recovered ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which was payable and was not paid along with interest of Rs. 18,29,539/thereon is now being paid in terms of Section 73(3) of the Act. In view of the aforesaid declaration dated 11th April, 2016, no show cause notice was issued and investigation into the Petitioner's activities was closed. However, during the course of search, the Revenue was of the prima facie view that the service tax liability paid by the Respondent in their declaration under Section 73(3) of the Act, was out of adjustment of false/ fake/ non-existing/ fabricated/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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Act is in accord with the proviso to Section 73(3) of the Act. Therefore, till the same is adjudicated, the issue of coercive proceedings for recovery, cannot arise. 9. On perusal of the show cause notice dated 8th September, 2017, we note that it is the Revenue's contention that it appears, consequent to the investigation that the Petitioner had claimed payment of service tax on the basis of forged and fabricated service tax challans. Thus, the show cause notice itself has given an opportunity to the Petitioner to respond 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... steps for coercive recovery under Section 87 of the Act can be taken by the authorities. However, the distinction sought to be drawn on behalf of the Revenue that in all the aforesaid cases, there was no admission of any amount of service tax being due and not paid as in this case, does not merit acceptance. This for the reason that, the fact remains that the show cause notice dated 8th September, 2017 has called upon to the Petitioner to establish that the payments made were not on the basis of false, forged and fabricated 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 pas ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
