Case Title | Sanjib das vs Union of India and Others |
Court | Gauhati High Court |
Honorable Judges | Justice Devashis Baruah |
Citation | 2022 (5) GSTPanacea 258 HC Gauhati WP(C)/2565/2022 |
Judgement Date | 13-May-2022 |
Council for Petitioner | A.K Gupta |
Council for Respondent | Asstt.S.G.I. |
Section | Clause 5 (d) of circular dated 11.11.2021 & Section 73 of the Finance Act of 1994 |
In Favour of | In Favour of Respondent |
The Gauhati High Court bench of Justice Devashis Baruah has held that 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. The power so exercised by the authority is a statutory power conferred upon the respondent authorities under Section 73 of the Finance Act of 1994 and as such the issuance of the said show cause notice cannot be said to be without jurisdiction.
FACTS OF THE CASE
Refund
Petitioner is a businessman executing contracts primarily work contracts with Public Sector Undertaking or the Government of India Enterprises under the name and style of M/s Sanjib Das.
Petition has been filed challenging the Demand-cum-Show-Cause Notice issued under C.No.V(15)92/ADJ/ST/COMMR /DIB/2020/7125 dated 31.12.2020 as well as the Corrigendum dated 21.02.2022 and for a direction that the respondent authorities should provide an opportunity of pre-show cause notice consultation to the petitioner.
It was also mentioned that from a perusal of Form 26AS, it appears that the petitioner had rendered taxable services amounting to Rs.7,95,64,992/- and on such value of services, the service tax amounting to Rs.1,15,97,072/- was required to be paid by the petitioner which the petitioner failed to pay and thereby the petitioner was asked to show cause as to why the service tax amounting to Rs.1,15,97,072/- on the services rendered during the period from F.Y. 2014-15 (October, 2014 to March, 2015) to F.Y. 2017-18 (upto June, 2017) should not be demanded/recovered from the petitioner under the proviso of Section 73 (1) of the Finance Act, 1994
The petitioner further states in his writ petition that the petitioner had received the Corrigendum dated 21.02.2022 issued by the respondent No. 4 where by the petitioner was informed that pursuant to the order of the respondent No. 2 regarding reassigning of the adjudicating authority at the level of Additional/Joint Commissioner, the adjudicating authority mentioned at para 15 of the said show cause notice dated 31.12.2020 be read as “Additional/Joint Commissioner 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.
COURT HELD
Considering the facts as recorded, held that In Clause 5 of the 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
in view of the judgment of the Supreme Court rendered in the case of WPIL Ltd., Ghaziabad (supra) is to be considered to operate retrospectively from the date of the Board’s instructions dated 21.12.2015 read with Master Circular dated 10.03.2017
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
The power so exercised by the authority is a statutory power conferred upon the respondent authorities under Section 73 of the Finance Act of 1994 and as such the issuance of the said show cause notice cannot be said to be without jurisdiction
No observations have been made as regards the legality and/or validity of the demand for which the show cause notice dated 31.12.2020 was issued. Under such circumstances, the adjudicating authority shall decide without being influenced by the observation made herein above. The petitioner would be entitled to take all such pleas in his reply as permissible under law.
ANALYSIS OF THE JUDGEMENT
Regarding 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
The fixing of the adjudicating authority is on account of administrative The fixing of the adjudicating authority is on account of administrative.
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