TMI Blog2018 (10) TMI 1376X X X X Extracts X X X X X X X X Extracts X X X X ..... sumed as correct for the purpose of deciding the issue of jurisdiction. The issue of limitation has to be adjudicated on the same principles, so far as this case is considered. The period of time for which the impugned show-cause notice has been issued overlaps with the period of time for which either a proceeding is pending or stands concluded. The department cannot be allowed to revisit the same issue under the garb of exercise of powers under Section 73 of the Act of 1994. The petitioners are not guilty of omitting or failing to disclose wholly or truly all materials required for verification of the assessment under Section 71. Facts constituting the assumption of jurisdiction under Section 73 of the Act of 1994 are lacking. The impugned show-cause notice is, therefore, without jurisdiction. Petition allowed. - W.P. No. 2095 (W) of 2017 - - - Dated:- 20-8-2018 - MR DEBANGSU BASAK, J. For The Petitioners : Mr. Abhratosh Majumder, Sr. Advocate, Mr. Pranit Bag, Advocate And Mr. Parag Chaturvedi, Advocate For The Respondents : Mr. Uday Sankar Bhattacharya, Advocate And Ms. Manasi Mukherjee, Advocate JUDGMENT DEBANGSU BASAK, J.:- The petitio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r Article 226 of the Constitution of India. He has submitted that, the impugned order suffers from lack of jurisdiction and is therefore required to be quashed. 4. Learned Advocate appearing for the respondents has submitted that, the impugned show-cause notice states that, the petitioners are guilty of contravention of Sections 66 (A), 67 and 68 of the Finance Act, 1994. He has also referred to Rules 6 and 9 of the CENVAT Credit Rules, 2004 and submitted that, the impugned show-cause notice, spells out the grounds on which the same has been issued. The facts constituting the assumption of jurisdiction are stated in the impugned show-cause notice. The extended period of five years is available on account of the petitioner being guilty of making misstatements in order to escape and/or evade tax. These facts can be conveniently adjudicated upon by the statutory authority. He has submitted that, the impugned show-cause notice gives adequate reasons for the invocation of the extended period. The department did not have knowledge of the accounts of the petitioner prior to the discovery thereof upon an investigation being undertaken, as stated in the impugned show-cause notice. Theref ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... % of the CENVAT credit availed of, independent of input service of that month, and the manner of payment is either through debit in CENVAT credit or otherwise. Other options of payment of amount under Rule 6 are not available for any tax payer. According to the respondents, the petitioners do not have an option to take 50% credit. The contention that, the petitioners had availed 50% credit remained unsubstantiated without any supporting proof. Consequently, the petitioners are liable to pay the amount as demanded in the impugned show-cause notice. 6. The period under the impugned show-cause notice is 2011-2015. The writ petition discloses that, the Service Tax Department initiated at least seven several proceedings against the petitioners for varying time bands during the period 2007-2016. First, for the period from 2007-2013, the respondents issued a notice dated December 3, 2012 for Service Tax audit, in which the petitioners produced all ledger accounts, CENVAT credit ledger, Service Tax payment challans, audit financial statements and CENVAT credit invoices. Second, the audit team of the department visited the office of the petitioners between June 24, 2013 and June 26, 2013 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... viso to Section 11A of the Central Excise Act, 1944. It has held as follows:- 12. The expression suppression has been used in the proviso to Section 11A of the Act accompanied by very strong words as 'fraud' or collusion and, therefore, has to be construed strictly. Mere omission to give correct information is not suppression of facts unless it was deliberate to stop (sic evade) the payment of duty. Suppression means failure to disclose full information with the intent to evade payment of duty. When the facts are known to both the parties, omission by one party to do what he might have done would not render it suppression. When the Revenue invokes the extended period of limitation under Section 11-A the burden is cast upon it to prove suppression of fact. An incorrect statement cannot be equated with a willful misstatement. The latter implies making of an incorrect statement with the knowledge that the statement was not correct. ..................................................................................... 14. As far as fraud and collusion are concerned, it is evident that the intent to evade duty is built into these very words. So far as mis-sta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mechanism for redressal of grievance still holds the field. Therefore, when a statutory forum is created by law for redressal of grievances, a writ petition should not be entertained ignoring the statutory dispensation. 11. Vijaybhai N. Chandrani (supra) has held in the facts of that case that, the assessee ought to have been directed to avail of the statutory alternative remedy. Satyawati Tondon Ors. (supra) has held that, a writ petition directed against a measure taken by a secured creditor exercising powers under the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 should not be ordinarily entertained in view of the statutory alternative remedy available under Section 17 of the Act of 2002. Indian Explosives Ltd. (supra) has found the exercise of discretion of the Writ Court not to be proper in view of the availability of statutory alternative remedy, in the facts of that case. Raja Mookherjee Ors. (supra) and Nayek Paper Industries Pvt. Ltd. (supra) have held that, existence of statutory alternative remedy is no bar to the maintainability of a writ petition when the impugned order was passed without jurisdiction. J ..... X X X X Extracts X X X X X X X X Extracts X X X X
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