9911796707
TMI Blog2025 (2) TMI 561X X X X Extracts X X X X X X X X Extracts X X X X ..... espective parties, the matters are taken up for the final hearing, as the issue involved is very short. 3. These petitions are filed challenging the show cause notice issued by the respondents -authorities without granting pre-consultation to the petitioners. 4. Pursuant to the order passed by this Court, the respondents-authorities granted the pre-consultation except in Special Civil Application No.1770 of 2022 and Special Civil Application No. 3845 of 2022. 5. This Court passed the following order on 27th September, 2023:- 1. Heard learned advocate Mr. Anand Nainawati for the petitioners, learned advocate Mr. Priyank P. Lodha and learned advocate Mr. Nikunt K. Raval for the respective respondents. 2. The principal grievance raised in this petition is not abiding by the requirement of the pre-show cause notice consultation as provided in Master Circular dated 10th March, 2017, as demand of duty involves more than Rs. 50,00,000/-. 3. The impugned show-cause notice/order in original in this petition is issued without following the mandatory requirements of the Master Circular. 4. Learned advocates for both the sides referred to and relied upon the decision of this Court i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of 2022 Jat Stone Crushing Granted Not filed SCN issued based on difference in value of income as per FORM 26AS and as per form ST - 3 returns (Pg. 27 and 28 of petition) SCA No. 5685 of 2022 Gatral Enterprise Granted Filed SCN issued based on difference in value of income as per FORM 26AS and as per form ST - 3 returns (Pg. 35 of petition) 8. In Special Civil Application No.5685 of 2022, the respondents-authorities have placed on record the outcome of the pre-consultation provided to the petitioner by filing an affidavit dated 13th September, 2024 . 9. On perusal of the outcome of the pre-consultation, it appears that considering the submissions made by the petitioners of Special Civil Application No.5685 of 2022, the respondent-Joint Commissioner, CGST & Central Excise, Rajkot opined that the contentions of the petitioners that they are eligible for exemption under Sr.No.12(a) of the Notification No. 25/2012-ST that on 20th June, 2012 as amended is not sustainable since petitioners are liable to pay service tax on the repair and maintenance services rendered to M/s. PGVCL during the period 2014-15 and 2015-16. 10. On perusal of the impugned show cause notice dated 29 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... suance of SCN in case of demand of duty is above Rs.50 Lakhs (except for preventive/offence related SCNs) is mandatory & shall be done by the Show cause notice issuing Authority", 3. Subsequent to this, a reference has been received from the DGGI to clarify whether DGGI formations fall under the exception/exclusion category of the CBIC's instruction supra dated 21.12.2015 or otherwise. 4. In this regard, it is hereby clarified that exclusion from pre-show cause notice consultation is case-specific and not formation specific 5. It is, therefore, retterated that pre-whow cause notice consultation shall not be mandatory for thuse cases booked under the Central Excise Act, 1944 or Chapter V of the Fosance Act, 1994 for recovery of Buties or taves not levind or paid or short levted or short pald or erroneously refunded by reason of (a) fraud, or (b) collusion, or (c) wilful mis-statement: or (d) suppression of facts or (e) contravention of any of the provision of the Central Excise Act, 1944 or Chapter V of the Finance Act, 1994 or the rules made there under with the intent to evade payment of duties or taxes. 6 Trade, industry and field formations may be suitably ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... evident from the impugned SCN, the alleged non-payment of service tax pertains to period between 2012-2013 to 2016-2017. Consequently, there is no 'preventive' aspect involved in the SCN and this is not even disputed by learned counsel for the Respondent. However, what is urged before the Court by the Respondent is that since the SCN was preceded by a search that was conducted in the business premises of the Petitioner, and the Petitioner also rendered itself liable for penal action 'for suppression of facts and contravention of various statutory provisions with intent to evade payment of due service tax' and other incidental levies, the SCN partakes of the character of an 'offence related' SCN and therefore falls within the exceptions carved out under para 5.0 of the Master Circular. 14. The above submission runs contrary to the very object of para 5.0 which is to narrow down the scope of the dispute by engaging the Assessee on specific areas where the Respondent may require information/clarification from the Assessee regarding alleged evasion of service tax. In the context of the present case, in relation to documents recovered during the search and sta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ith law. No costs. Consequently, connected miscellaneous petition is closed. 86. The above judgement of the Delhi High Court in Amadeus (Supra)also negatives the stance taken in the reply affidavit dated 5 th March 2021 of the respondents, wherein, it has been urged by the Respondent that the offence/preventive cases are outside the purview of the procedure relating to the pre-show cause consultation. 87 It would be appropriate at this stage to reproduce the relevant provisions of Sub-sections (1) and (4) of Section 11A of the Excise Act and they are as follows: "11A. Recovery of duties not levied or not paid or short-levied or short-paid or erroneously refunded.- (1) Where any duty of excise has not been levied or paid or has been short-levied or short-paid or erroneously refunded, for any reason, other than the reason of fraud or collusion or any wilful mis-statement or suppression of facts or contravention of any of the provisions of this Act or of the rules made thereunder with intent to evade payment of duty,- (a) the Central Excise Officer shall, within one year from the relevant date, serve notice on the person chargeable with the duty which has not been so levied ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rcular No 1079 of 2021. 14. In view of the facts of the case being squarely covered by the decision of this Court in the case of L AND T Hydrocarbon Engineering Ltd. (Supra) wherein the reliance is also placed on the decision of the Hon'ble Delhi High Court in case of Amadeus India Pvt. Ltd. Vs. Principal Commissioner of Central Excise Services Tax & Central Tax reported in 2019(25) G.S.T.L (Del.) wherein, so far as the merits of the matter is concerned, the Hon'ble Apex Court has not interefered and issued the notice in SLP only for the purpose of as to whether the respondents are entitled to issue reviving of earlier show cause notice or not ? The order passed by the Hon'ble Apex Court, the proceedings arising from the judgement of the Hon'ble Delhi High Court reads as under:- ORDER Delay condoned. Learned Additional Solicitor General submits that if a fresh show cause notice is to be issued as directed by the High Court after pre-consultation, the Department may be given liberty to revive the earlier show cause notice to obviate any objection in regard to limitation. Issue notice confined to the above issue, returnable in eight weeks. 14.1 As pointed out by learned adv ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
