TMI Blog2019 (5) TMI 874X X X X Extracts X X X X X X X X Extracts X X X X ..... - Dr.Justice Anita Sumanth For the Petitioner : Mr.N.Prasad For the Respondents : Mr.G.M.Syed Nurullah Sheriff And Mr.Ravikumar, Sr. Standing counsel ORDER The petitioner is a company registered under the laws of Germany. It has a branch office in Chennai for performing on-shore supply of goods and supervisory services. It is an assessee to service tax. 2. The petitioner is an approved vendor for power projects of the National Thermal Power Corporation Limited (NTPC), Meja Urja Nigam Private Limited (MUNP) and Damodar Valley Corporation (DVC). Certain contracts and sub-contracts were awarded to BGR Energy Systems Limited and BGR Boilers Pvt. Limited and the latter, in turn, entered into two separate contracts with the petitioner for on-shore supply of goods and on-shore supply of services for the power projects. It is the liability to service tax under the aforesaid contracts that forms the lis as between the petitioner and the respondent before me. I refrain from adverting to the taxability or otherwise of services rendered since this is a matter f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2017 was filed enclosing documentary evidences in support of the petitioners stand, in the light of which, the petitioner requested dropping of the proposals raised by the Audit. The request for personal hearing was also reiterated. 6.On 06.09.2017, a communication was received from the Audit Commissionerate seeking various particulars for audit of the period covering five (5) years, pre- GST, upto 30.06.2017. Thereafter, a notice dated 24.05.2018 was received from the Superintendent of GST and Central Excise calling urgently for various particulars that were duly submitted under cover of letter dated 18.06.2018. 7. The above events culminated with the issuance of the impugned show cause notice (SCN) dated 11.10.2018, bearing reference to the CERA Audit. There is however, no reference to the exchange of communication between the petitioner and the Assessing Officer or the details furnished by the petitioner to the Department in the course of the Audit. 8. It is in the aforesaid circumstances that the petitioner is before the Court, contending mainly that no pre-consultation hearing has been conducted in the present case as mandate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -show cause notice consultation in cases other than those detected by Preventive / Anti-Evasion and amount involved being more than ₹ 50 lakhs - Reg. Please refer to the notification issued vide F.No.1080/11/DLA/CC Conference/2016, dated 28th June 2016, wherein it has been clarified that the pre-show cause notice consultation with the assessee concerned shall be done by the adjudicating authority. 2.0 Certain doubts have been further expressed with regard to this. As per Circular No.985/09/2014-CX, dated 22.09.2014 Audit Commissionerate has been made responsible to issue the show cause notices, wherever necessary, after the audit objections are confirmed in the MCMs. Such show cause notices are answerable to and adjudicated by the Executive Commissioner or the Subordinate officers of the Executive Commissionerate as per the adjudication limits. In such cases, show cause notice issuing authority and adjudicating authority are different. 3.0 Hence, it is clarified that in cases where show cause notice issuing authority / Commissionerate and adjudicating authority / Commissionerate are different, pre-show cause notice cons ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nished to the Department is of the year 2004, whereas enquiry is between October 2012 and June 2017. The business activities and methods of doing business are likely to have changed over the years. There is also no reference, as rightly pointed out by Mr.Chopda to the order of CESTAT, dated 28.03.2018. However, there has been no opportunity extended to the assessee for a face-to-face with the assessing officer, which, in my view, is what a 'consultation' entails. One could argue as Mr.Chopda has, that no personal hearing has been sought in this case and in any event, it will be afforded by the respondents prior to his decision whether to confirm the proposals in the show cause notice or otherwise. ₹ 16. That may be so. However, the import of the Circular / Instruction has to provide a medium for 'consultation' between the Assessee and the Department. In fact, Master Circular dated 10.03.2017 uses the phrase 'such consultation shall be done by the Adjudicating Authority with the Assessee concerned' . 17. According to Black's Law Dictionary, the word 'consultation' is defined as follows: &# ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... de associations are regularly held at the time of preparation of budget. ii. Draft circulars etc., are put on CBEC website for comments by the trade. iii. Only in respect of tariff related changes public consultation is neither desirable or feasible. 13.While the report appears to proceed on the basis that the Consultative process is being implemented effectively and regularly, the present case would establish otherwise. The impugned SCN has been issued, admittedly, without engaging the petitioner/assessee in the process of pre-SCN consultation. 14.In the light of the aforesaid discussions, that include the discussions and conclusion in W.P.No.1618 of 2019, extracted above, I set aside impugned show cause notice dated 11.10.2018. The respondents will call upon the petitioner to appear before them with all relevant materials and afford it full opportunity of pre-SCN Consultation, prior to issuance of show cause notice, if at all found necessary. 15. This writ petition is allowed in the aforesaid terms. There will be no order as to costs. Consequently, connected WMP is closed ..... X X X X Extracts X X X X X X X X Extracts X X X X
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