TMI Blog2022 (5) TMI 987X X X X Extracts X X X X X X X X Extracts X X X X ..... CBEC instructions dated 21.12.2015 or otherwise and in that regard it was clarified that the exclusion from pre-show cause notice consultation is case-specific and not formation specific. In Clause 5 of the said Circular it was reiterated that the pre-show cause notice consultation shall not be mandatory for those cases booked under the Central Excise Act, 1944 or Chapter V of the Finance Act, 1994 for recovery of duties or taxes not levied or paid or short levied or short paid or erroneously refunded for the reason mentioned in sub-clauses (a) to (e) of Clause 5. A perusal of the said Circular does not bring anything new. As the stand taken by the respondent authorities in the impugned show cause notice dated 31.12.2020 that the petitioner had suppressed material facts, the same would come within the exception as mentioned in Clause 5 (d) of the Circular dated 11.11.2021 and as such it was not mandatory for respondent authorities to have a pre-show cause notice consultation. Another aspect also needs to be looked into, i.e., whether the authority which had issued the Demand-cum-Show Cause Notice dated 31.12.2021 had the authority to do so. The power so exercised by the authorit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce Act, 1994 read with Rule 9 of the Service Tax Rules, 1994 bearing registration No.AGVPD4317LST001. 4. It is the case of the petitioner that the Central Board of Excise and Customs had issued a Master Circular on Show Cause Notice, Adjudication and Recovery dated 10.03.2017 on the subject of Show Cause Notices, Adjudication Proceedings and Recovery . In terms with Clause 5 of the said Master Circular, the Central Board of Excise and Customs (for short, the CBEC) had made pre-show cause notice consultation by the Principal Commissioner/Commissioner prior to the issuance of show cause notice in cases involving demands of duty above Rs.50 lakhs (except for preventive/offence related SCN s) mandatory vide instruction issued from F No.1080/09/DLA/MISC/15 dated 21.12.2015. It was also stipulated that such consultation shall be done by the adjudicating authority with the assessee concerned. It was mentioned that the said is an important step towards trade facilitation and promoting voluntary compliance and to reduce the necessity of issuing show case notice. The petitioner further states in his writ petition that the petitioner was served with a Demand-cum-Show-Cause Notice under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... missioner of Central Goods and Services Tax, Aizawl instead of Additional Commissioner of Central Goods and Services Tax, Dibrugarh . It is the further case of the petitioner that pursuant to the said Corrigendum, the petitioner received the letter dated 23.03.2022 whereby the petitioner was informed that pursuant to the order of the respondent No. 2, the respondent No. 5 is appointed as the Adjudicating Authority of the show cause notice and the said respondent No. 5 had fixed date for hearing of the said show cause notice on 07.04.2022 and asked the petitioner to appear for personal hearing either online or physically in person or through authorized representative. It is against the said show cause notice as well as the Corrigendum dated 21.02.2022 that the petitioner has approached this Court under Article 226 of the Constitution of India. 6. This Court vide an order dated 07.04.2022 took up the writ petition for consideration. On the said date, the learned counsel appearing on behalf of the GST Department have placed a clarification dated 11.11.2021 whereby the Master Circular No.1053/02/2017-CX dated 10.03.2017 was clarified. In Clause 4 of the said Circular it was clarif ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rospectively. The learned counsel for the petitioner further submitted that prior to the issuance of the impugned show cause notice dated 31.12.2020, the Department on an earlier occasion had issued a show cause notice under CNo.V(30)24/ST/SIR/SCN/ACJ/2016-17/5903 dated 08.12.2016 on similar facts and on the same set of allegations for the period from 2011-12 to 2013-14 2015-16 (April-September) under Section 73 (1) of the Finance Act, 1994 invoking extended period of limitation contending inter-alia that the Departmental Officers had conducted enquiry against the petitioner and that though the petitioner had rendered taxable services but did not discharge the service tax. The learned counsel for the petitioner further submitted that it is the settled position of law that when the first show cause notice was issued, all the relevant facts were in the knowledge of the authorities, and as such, while issuing the second and the third show cause notices on the same/similar facts for covering the same period or subsequent period, could not be taken as suppression of facts on the part of the assessee as the facts were already in the knowledge of the authorities. In that regard, the lea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... held that the clarificatory notification would take into effect retrospectively as the said notification merely clarifies the position and makes explicit what was implicit. Mr. S. C. Keyal, the learned counsel appearing on behalf of the GST Department further submits that the judgment of the Supreme Court of India in the case of M/s Suchitra Components Ltd. (supra) is not applicable to the facts of the instant case inasmuch as the Circular dated 11.11.2021 is a Circular relating to the procedure which have clarified Clause 5 of the Master Circular and as such the said Circular to be oppressive or beneficial does not arise. Mr. S. C. Keyal, the learned counsel appearing on behalf of the GST Department further submitted that the principle of law laid down in Nizam Sugar Factory (supra) does not apply to the fact of the instant case inasmuch as the appellant before the Supreme Court in pursuant to the said show cause notice had responded which has not been done so by the petitioner herein. 10. I have heard the learned counsels for the parties and given my anxious consideration to the matter. First this Court would like to deal with the question as to whether the Circular dated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ance of the said show cause notice cannot be said to be without jurisdiction. 12. Now coming to the question as to whether there was suppression of facts in the case of the petitioner. Taking into consideration that this Court is at the stage of deciding whether the said Demand-cum-Show Cause notice dated 31.12.2020 is beyond the jurisdiction and this Court having held that the respondent authorities issuing the Demand-cum-Show Cause Notice have exercised the authority within the realm of the Finance Act, 1994, this Court would not like to go into the said question as any opinion rendered may affect the petitioner or the respondent as the case may be. 13. At this stage, another aspect needs to be taken into consideration as regards the legality and validity of the Corrigendum dated 21.02.2022 whereby the adjudicating authority mentioned in para 15 of the Demand-cum-Show Cause Notice dated 31.12.2020 was to be read as Additional/Joint Commissioner of Central Goods and Services Tax, Aizawl instead of Additional Commissioner of Central Goods and Services Tax, Dibrugarh . 14. The learned counsel for the petitioner submits that it would be difficult for the petitioner for do ..... X X X X Extracts X X X X X X X X Extracts X X X X
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