TMI Blog2019 (8) TMI 396X X X X Extracts X X X X X X X X Extracts X X X X ..... ection 173 and 174(2)(e) would show that while bringing an omission to the provision of Chapter V of the Finance Act of 1994, a savings clause for continuing with the proceedings initiated/to be initiated was also duly provided. If a statute stood omitted with a savings clause, the savings clause would not render it impermissible for the proceedings initiated/to be initiated under Chapter V of the Finance Act of 1994, which stood omitted by Section 173 of the CGST Act of 2017 to be continued. This Court is of the considered opinion that no case for interference is made out in the matter specially when, the show-cause notice has been issued - petition dismissed. - W.P. No.1567/2019 - - - Dated:- 24-7-2019 - S.C. Sharma And Shailendra Shukla JJ. For the Petitioner : Shri H.Y. Mehta, learned counsel For the Respondent Excise Department : Shri Prasanna Prasad, learned counsel ORDER I.A. No.2367/2019 is taken up. The same stands allowed with the consent of the parties. The petitioner before this Court, M/s Matrika Infrastructure Private Limited, a Company registered under the C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s as demanded for audit. A prayer has been made for quashment of show-cause notice issued by the respondents. 08. The petitioner has also stated that the Central Government has introduced GST w.e.f. 01.07.2017 under Section 174 of the Central Goods and Services Tax Act, 2017 and all powers under the Finance Act, 1994 have been repealed by the legislature, and therefore, the respondents have no authority to demand document for the purpose of audit from any assessee under the provisions of Finance Act, 1994. The notice / letter demanding requisite document for audit purpose Per se is against the authority, and therefore, bad in law. 09. It has been also stated that Section 173 of the Central Goods and Service Tax Act, 2017 has omitted the provisions of Finance Act, 1994 and as no saving to Rule 5A(2) of the Service Tax Rule, 1994 is provided in the provisions of Section 174 (2) of the Central Goods and Service Tax Act, 2017, fresh audit proceedings initiated by the respondents is bad in law. 10. It has been further stated that after introduction of Central Goods and Service Tax Act, 2017, the notice / letter issued under the provis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted that keeping in view the material available with them and to protect the interest of revenue, show-cause notice was issued by them keeping in view the statutory provisions as contained under Sections 73 of the Finance Act, 1994. 18. Section 73 of the Finance Act, 1994 reads as under:- SECTION 73. Recovery of service tax not levied or paid or short-levied or short-paid or erroneously refunded. - . - (1) Where any service tax has not been levied or paid or has been short-levied or short-paid or erroneously refunded, Central Excise Officer may, within thirty months from the relevant date, serve notice on the person chargeable with the service tax which has not been levied or paid or which has been short-levied or short-paid or the person to whom such tax refund has erroneously been made, requiring him to show cause why he should not pay the amount specified in the notice : Provided that where any service tax has not been levied or paid or has been short-levied or shortpaid or erroneously refunded by reason of- (a) fraud; or (b) collusion; or (c) wilful ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ; or (c) wilful misstatement; or (d) suppression of facts; or (e) contravention of any of the provisions of this Chapter or the rules made thereunder with intent to evade payment of service tax, has not been established against the person chargeable with the service tax, to whom the notice was issued, the Central Excise Officer shall determine the service tax payable by such person for the period of thirty months, as if the notice was issued for the offences for which limitation of thirty months applies under subsection (1). [ * * * ] (3) Where any service tax has not been levied or paid or has been short-levied or short-paid or erroneously refunded, the person chargeable with the service tax, or the person to whom such tax refund has erroneously been made, may pay the amount of such service tax, chargeable or erroneously refunded, on the basis of his own ascertainment thereof, or on the basis of tax ascertained by a Central Excise Officer before service of notice on him under sub-section (1) in respect of such service tax, and inform the [Central Excise Officer] of such payment in writing, who, on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en paid before the 14th day of May, 2003. (6) For the purposes of this section, relevant date means,- (i) in the case of taxable service in respect of which service tax has not been levied or paid or has been short-levied or short-paid- (a) where under the rules made under this Chapter, a periodical return, showing particulars of service tax paid during the period to which the said return relates, is to be filed by an assessee, the date on which such return is so filed; (b) where no periodical return as aforesaid is filed, the last date on which such return is to be filed under the said rules; (c) in any other case, the date on which the service tax is to be paid under this Chapter or the rules made thereunder; (ii) in a case where the service tax is provisionally assessed under this Chapter or the rules made there under, the date of adjustment of the service tax after the final assessment thereof; (iii) in a case where any sum, relating to service tax, has erroneously been refunded, the date of such refund.] SECTION 73A. Service tax collected f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he date of the public notice to be issued by the Central Excise Officer for the refund of such surplus amount. SECTION 73B. Interest on amount collected in excess. - Where an amount has been collected in excess of the tax assessed or determined and paid for any taxable service under this Chapter or the rules made thereunder from the recipient of such service, the person who is liable to pay such amount as determined under sub-section (4) of section 73A, shall, in addition to the amount, be liable to pay interest at such rate not below ten per cent. and not exceeding twenty- four per cent. per annum, as is for the time being fixed by the Central Government, by notification in the Official Gazette, from the first day of the month succeeding the month in which the amount ought to have been paid under this Chapter, but for the provisions contained in sub-section (4) of section 73A, till the date of payment of such amount : Provided that in such cases where the amount becomes payable consequent to issue of an order, instruction or direction by the Board under section 37B of the Central Excise Act, 1944 (1 of 1944), an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in writing, extend the aforesaid period by such further period or periods as he thinks fit, so, however, that the total period of extension shall not in any case exceed two years. SECTION 73D. Publication of information in respect of persons in certain cases. - (1) If the Central Government is of the opinion that it is necessary or expedient in the public interest to publish the name of any person and any other particulars relating to any proceedings under this Chapter in respect of such person, it may cause to be published such names and particulars in such manner as may be prescribed. (2) No publication under this section shall be made in relation to any penalty imposed under this Chapter until the time for presenting an appeal to the Commissioner (Appeals) under section 85 or the Appellate Tribunal under section 86, as the case may be, has expired without an appeal having been presented or the appeal, if presented, has been disposed of. Explanation . - In the case of a firm, company or other association of persons, the names of the partners of the firm, directors, managing agents, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... petition was filed initially for quashment of letter / notice dated 01.01.2018, however, a show-cause notice has been issued on 25.04.2019 in the matter. The Division Bench of this Court in the case of Tripti Alcobrew Limited v/s The State of Madhya Pradesh Six Others (W.P. No.1969/2014) has held as under:- The respondent Union of India has filed a detailed reply in the matter and has answered each and every ground raised by the petitioner, but the fact remains that the petitioner is against Show Cause Notice alone. Hon'ble the Supreme Court in the case of Special Director Vs. Mohd. Ghulam reported in (2004) 3 SCC 440 , in paragraph 5 and 6 has held as under : 5. This Court in a large number of cases has deprecated the practice of the High Courts entertaining writ petitions questioning legality of the show cause notices stalling enquiries as proposed and retarding investigative process to find actual facts with the participation and in the presence of the parties. Unless, the High Court is satisfied that the show cause notice was totally non est in the eye of law for absolute want of jurisdiction of the authority to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... portunity to satisfy the authorities that there was no importation of banned goods which makes them liable to confiscation. In the light of the aforesaid judgment, the respondent shall certainly grant an opportunity of hearing to the petitioner and the petitioner shall have all opportunity to satisfy the authorities in respect of grounds raised in the Show Cause Notice and the present Writ Petition is certainly a premature Writ Petition. Not only this, in the case of Union of India Vs. Kunisetty Satyanarayana, the Hon'ble Supreme Court, in paragraph 13, 14, 15 and 16 has held as under : 13. It is well settled by a series of decisions of this Court that ordinarily no writ lies against a charge sheet or show-cause notice vide Executive Engineer, Bihar State Housing Board vs. Ramdesh Kumar Singh and others JT 1995 (8) SC 331, Special Director and another vs. Mohd. Ghulam Ghouse and another AIR 2004 SC 1467, Ulagappa and others vs. Divisional Commissioner, Mysore and others 2001(10) SCC 639, State of U.P. vs. Brahm Datt Sharma and another AIR 1987 SC 943 etc. 14. The reason why ordinarily a writ petition should not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Mr Prasanna Prasad, learned counsel for the respondents. The petitioner before this court has filed this present petition against the ' Panchanama ' dated 19-05-2016, by which certain goods have been seized from the Excise Department. Seizure memo is under challenge. However, reply has been filed. Learned counsel for the respondent has drawn the attention of this court towards show cause notice issued u/s 124 of the Customs Act, 1962. His contention is that proceedings have been initiated under the Customs Act against the petitioner and the Customs Act, 1962 provides a complete mechanism for adjudicating the dispute between the parties. His further contention is that petition is premature. This court is of the considered opinion that the petitioner does have a remedy to file reply to the show cause notice dated 02- 11- 2016. The Apex Court in the case in the case of Union of India and Another Vs. Kunisetty Satyanarayana reported in 2006 (12) SCC 28, in paragraph 14 and 15 has held as under : 14. The reason why ordinarily a writ petition should not be entertained against a mere showcause notice or charge- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... decided by Calcutta High Court in W.P. No.380/2019 dated 15.01.2019 the scope and ambit of Sections 173 and 174 of the Central Goods and Service Tax Act, 2017 has been discussed, as the same provides for a saving clause and the same reads as under:- The provisions of Chapter V of the Finance Act, 1994 stands omitted by Section 173 of the Act of 2017 save as otherwise provided under the Act of 2017. Therefore, if any provision of the Act of 2017 allows the applicability of the Chapter V of the Finance Act, 1994, then notwithstanding the omission of the Chapter V of the Finance Act, 1994 under Section 173 the same continues to apply. Section 174 is the repeal and saving provisions. Sub-Section 1 of Section 174 repeals the provisions of the various statutes as mentioned therein. Sub-Section (2) of Section 174 stipulates that, notwithstanding the repeal of the Acts mentioned in Sub- Section (1) of Section 174 and the amendment of the Finance Act, 1994 to the extent mentioned in Sub-Section (1) of Section 174 or Section 173, it shall not affect any pending investigation, enquiry, verification or other legal proceedings and that, such proceedings may b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessment proceedings, adjudication or any other legal proceeding or recovery of arrears etc., and all such proceedings may be instituted, continued or enforced as if the Act had not been so amended or repealed. 31. As the provisions of Section 174(2) also is clearly applicable in respect of an omission of the enactment under Section 173, therefore, any such investigation, enquiry, etc., that was instituted, continued or enforced under Chapter V of the Finance Act of 1994, continues to remain in place inspite of such omission of Chapter V of the Finance Act. In other words, Section 174(2)(e) is a savings clause in respect of any investigation, enquiry etc., that was/to be instituted under Chapter V of the Finance Act of 1994. A conjoint reading of Section 173 and 174(2)(e) would show that while bringing an omission to the provision of Chapter V of the Finance Act of 1994, a savings clause for continuing with the proceedings initiated/to be initiated was also duly provided. Existence of the savings clause in respect of omission of Chapter V of the Finance Act of 1994 clearly brings it within the purview of the provisions laid down by the Constituti ..... X X X X Extracts X X X X X X X X Extracts X X X X
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