TMI Blog2017 (7) TMI 1368X X X X Extracts X X X X X X X X Extracts X X X X ..... a demand notice also needs to be issued and only in the event of the demand notice not being satisfied, the proceedings under Section 87 can be initiated - In the instant case, when we look at the reply submitted by the Respondents, we do not find any such adjudication done under Section 73 of the Act. Neither from the reply nor from the submissions made by the Respondents, do we find any demand notice being raised against the Petitioners at any point of time and it is only the garnishee notices and a freezing order straightaway issued, Annexure P-1 to the management of SECL and Annexure P-2 to the Union Bank of India. This Court has no hesitation in reaching to the conclusion that the garnishee notices issued to the SECL and Union Bank ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gned orders is that there has been no determination made by the Respondents assessing the actual amount of default on the part of the petitioner-establishment upon which the recovery proceedings could have been initiated. Learned Counsel for the Petitioners refers to the provisions of Sections 72, 73 and 87 of the Finance Act and submits that until and unless there is a determination made by the Respondents, no recovery proceedings could have been initiated. According to the Counsel for the Petitioners, Annexure P-3 which is also under challenge in the present writ petition is nothing but a show cause notice. That, the show cause notice must be proceeded with and acted upon resulting in a determination of an assessment of service tax, that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... note of a couple of judgments of different High Courts in this regard. The Karnataka High Court in the case of Mrs. Prashanti v. The Union of India Others, decided on 29-4-2015 in Writ Petition No. 14054 of 2015 (T-TAR) [2016 (41) S.T.R. 392 (Kar.)], in paragraphs 18 and 19 has held as under : 18. Regard being had to the scheme of the Finance Act, 1994 it does not leave any doubt in the mind of this Court that until and unless there is no determination and adjudication either under Section 72 or under Section 73 of the Act, respondents-2 to 4 cannot resort to invoke Section 87 of the Finance Act. When there is no adjudication order and undisputedly and concededly in the instant case, respondent No. 4 having issued a show cause notice ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -. Thereafter, no demand for such amount has been made from the petitioner by issuing any demand notice in this regard. However, the respondents have resorted to the drastic measure of issuing notices under Section 87 of the Act to the debtors of the petitioner. Section 87 of the Finance Act, 1994 provides for recovery of any amount due to Central Government and lays down that where any amount payable by a person to the credit of the Central Government under any of the provisions of that Chapter or the rules made thereunder is not paid, the Central Excise Officer shall proceed to recover the amount by one or more of the modes mentioned therein. Section 87 of the Finance Act, 1994 came up for consideration before the Jharkhand High Court in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... putation in the business. Therefore, the action of the respondents of resorting to the provisions of section 87 of the Act was not warranted in the facts and circumstances of the case. The impugned notices, Annexure E collectively to the petition, being contrary to the provisions of section 87 of the Act, therefore, cannot be sustained. 8. Further, in the case of ICICI Bank Limited v. The Union of India Others, 2015 SCC Online Bom 4875 = 2015 (38) S.T.R. 907 (Bom.), the Division Bench of the Bombay High Court has held as under : 44. We are of the considered view that the amount which is payable by a person can be said to be payable only after, there is determination as provided under Section 72 or Section 73 of the said Act. We ..... X X X X Extracts X X X X X X X X Extracts X X X X
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