TMI Blog2019 (6) TMI 1664X X X X Extracts X X X X X X X X Extracts X X X X ..... unity of hearing in person before adjudication of the case. The said notice further shows that the case is posted for hearing and the petitioners were given opportunity of being heard before any orders have been passed. Reading of the entire show cause notice which runs into 32 pages primarily describes the averments of the parties. The language of show cause notice would show that after preliminary consideration, the authority issuing the same came to a conclusion that the petitioners have willfully suppressed certain facts of rendering taxable services provided to them. The show cause further speaks that such facts came to fore when the investigation of records was carried out and after examination of records, the authority was of the opinion that suppression of facts exists. A reading of show cause notice would show that the authority issuing notice has reasonably acted upon and narrations have been made that why the authority has come to conclusion by recording such objective satisfaction of fact and has asked for the explanation by way of show cause. At this stage, since the petitioners have been given opportunity of hearing, the prayer to quash the show cause at the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ilways by the outsiders i.e., the petitioners herein. It is further contended that in respect of Rajdhani, Duranto Trains and other Mails, the catering charges are included in the train tickets whereas in respect of other Super Fast Express Trains, apart from purchase of train tickets from Indian Railways, the catering charges are directly collected by the caterers from the passengers while the food is provided to them. 5. Learned counsel for the petitioner(s) further submits that the charges are basically meant to have access in the Railways and the entire amount is paid at the time of payment of the license fee by the licensee. He submits that respondentdepartment has again served the show cause notice asking for payment of the service tax. Demonstrating the fact, counsel submits that if the bid for catering charges is ₹ 100/- per plate then in the train while the food is provided including the profit certain amount of ₹ 110/- is recovered as such the licence fee of ₹ 100/- is already paid which includes all the taxes and charges, therefore, such show cause amounts to double taxation. 6. Referring to 2016 (333) E.L.T. 5 (Chhattisgarh) Jalaram Transport v. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2012 to 2016. Referring to Section 66-D contained in Chapter V of the Finance Act, 1994 and Chapter VA of the Finance Act, 2003, it is stated that the Indian Railways was not carrying out any act for which the consideration was paid and the amendment to Section 66-D was not before 01.04.2016, as such, when the support service was not included before 01.04.2016 or any service has found place in 66D(iv), such taxes could not be demanded prior to the said date. The further contention is that the legislative intent of the amendment would show that the show cause suffers from unreasonableness. It is further contended that in respect of taxes which were paid, the petitioners have filed their returns which were subject of audit and way back from the year 2012 to 2016 it was found that the petitioners have filed the correct returns, therefore, after a long time, all of a sudden, the respondents cannot turn back and ask for such tax. 10. The contention is further made that the Law of Limitation would also come into play as it cannot be made wide open for the respondents to call for the service tax when it was audited by CAG u/s 18 of the Comptroller and Auditor General's (Duties, Pow ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... perusal of the said notice would show that preliminary submissions were made by the petitioners' representative(s) and after consideration thereof, the notice under challenge was issued. The show cause notice appears to have been issued after the initial reply. The details of notice purports that the averments of the petitioners were too considered and thereafter, they were given opportunity of hearing in person before adjudication of the case. The said notice further shows that the case is posted for hearing and the petitioners were given opportunity of being heard before any orders have been passed. Reading of the entire show cause notice which runs into 32 pages primarily describes the averments of the parties. The language of show cause notice would show that after preliminary consideration, the authority issuing the same came to a conclusion that the petitioners have willfully suppressed certain facts of rendering taxable services provided to them. The show cause further speaks that such facts came to fore when the investigation of records was carried out and after examination of records, the authority was of the opinion that suppression of facts exists. According to the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the opportunity of hearing is given, it is well within the domain of the petitioners to explain the fact that the activities carried out by them are not within the taxable income. Thereafter, after consideration of the reply, if the authorities come to a finding that such activity comes within the service of taxable net, then in such a case too that can be subject of challenge. The reiteration of word 'suppression' gives such analogy and if it is found that certain activities which were subject of tax were not disclosed and came to light after investigation then certainly the authorities have right to adjudicate and determine it. 17. At this stage, since the petitioners have been given opportunity of hearing, the prayer to quash the show cause at the inception would amount to strangulate the issue which is yet to be adjudicated. The analogy of Siemen India Ltd. 2007 5 STR, therefore, would govern the situation that it would not be appropriate to exercise the discretionary jurisdiction of writ and quash the show cause notice by evaluating the language of it as primarily it does not show that it is without jurisdiction. Further it would be wrong to hold that the authorit ..... X X X X Extracts X X X X X X X X Extracts X X X X
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