TMI Blog2018 (11) TMI 922X X X X Extracts X X X X X X X X Extracts X X X X ..... nother show-cause notice dated April 22, 2016 for the period 2010 to 2012 for the second writ petition - the first petitioner being an assessee was required to submit half-yearly return by the 25th of the month following the particular half year. Therefore, in the facts of the present case, the petitioner ought to have filed the return by April 25, 2011. The show-cause notice was issued on April 22, 2016. It was within a period of five years contemplated under Section 73 (6)(b) of the Act of 1994 - the two impugned orders are not barred by the laws of limitation. Penalty u/s 78A of the Act of 1994 - Held that:- Such a provision cannot be invoked for the purpose of imposing a penalty for an offence happening prior to such provision coming ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o far as the other writ petition being W.P. 9270(W) of 2018 (hereinafter referred to as the second writ petition for the sake of convenience) he submits that, the period involved is 2010 to 2013. However, he submits that, the major claims in the second writ petition are for the period 2010 to 2011. According to him, in any view of the matter, the claims made in the impugned show-cause notices are barred by limitation. He submits that, both the show-cause notices are dated April 22, 2016. Under Section 73 of the Finance Act, 1994, as existing at that point of time, the revenue may raise a claim within one year from the relevant day, or within extended period of five years from the relevant date, upon the criteria laid down therein being sati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... AIR 1958 SC 86 (State of U.P. Vs. Mohammad Nooh) and submits that, a writ of certiorari was available to challenge an order in original. Relying upon 2008 (231) E.L.T. 194 (S.C.) (Commissioner of Central Excise, Ahmedabad-I Vs. M. Square Chemicals) he submits that, where a period of limitation has set in, the impugned show-cause notice has to be quashed. 5. Learned advocate for the Revenue draws the attention of the Court to Section 73 of the Act of 1994. He submits that, the recovery of Service Tax not levied or paid or short levied or short paid can be recovered within the initial period of one year from the date of the relevant date and thereafter for a period of five years on the happening of a fraud or collusion. He relies upon Sect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t case has to be looked into for considering, whether, the impugned show-cause notices are barred by limitation or not. In the present case, the first petitioner was found to have rendered services defined as taxable service under Section 65B (51) of the Finance Act, 1994. It was found to have contravened various provisions of the Act of 1994 as also the Rules of 1994. It was issued a show-cause notice dated April 22, 2016 for the period 2010 to 2014 in respect of the first writ petition and another show-cause notice dated April 22, 2016 for the period 2010 to 2012 for the second writ petition. In the adjudicating proceedings the petitioner was found to be liable to pay service tax for the business carried on by it. Such finding has not bee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... judicating Authority assuming jurisdiction and passing the impugned order is substantiated. 9. The first issue is answered by holding that, the two impugned orders are not barred by the laws of limitation. 10. So far as the impugned order in the first writ petition is concerned, it proceeds to impose a penalty by invoking the provisions of Section 78A of the Act of 1994. Section 78A of the Act of 1994 has come into operation with effect from May 10, 2013. In my view, such a provision cannot be invoked for the purpose of imposing a penalty for an offence happening prior to such provision coming into effect. Consequently, the penalty imposed in the impugned order of the first writ petition by invoking Section 78A of the Act of 1994 is q ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... refer an appeal by condoning the delay in preferring such appeals. Therefore, the question of directing the petitioners to prefer an appeal by condoning the delay therefore does not arise. 13. Mohammad Nooh (supra) is of the view that, a writ of certiorari can be issued, where there are gross illegalities in the impugned order. It holds that where, an Adjudicating Authority has acted without jurisdiction, a provision for appeal will not cure the first defect. In the present case, I have not found the Adjudicating Authority to be without jurisdiction or its assumption of jurisdiction to be defective. 14. In view of the discussions above, the second issue is answered by holding that, the imposition of penalty under Section 78A stands vi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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