- (1.) We have heard Shri J.K. Mittal and Shri Chandra Kumar Rai, learned counsel for the petitioner. Shri S.P. Kesarwani appears for the respondents. This writ petition is directed against the show-cause notice dated May 5, 2011, issued by the Additional Director-General/Directorate General of Central Excise Intelligence, Delhi Zonal Unit, R. K. Puram, New Delhi, answerable to the Commissioner, Customs and Central Excise, CGO Complex II, Kamala Nehru Nagar, Ghaziabad. The petitioner has also prayed for declaration that the notice has been issued arbitrarily, without jurisdiction, and time-barred, against the provisions of law and illegal. The petitioner has also prayed for writ of mandamus or any other appropriate writ declaring that activity "levelling of soil including filling of gorges/ nallah, removing of shrubs, grass and rubbish from the area" are not liable to service tax under the provisions of Chapter V of the Finance Act, 1994.
(2.) The notice alleges, on the basis of specific intelligence gathered by the Revenue that the petitioner is engaged in providing various services to M/s. Sahara India Commercial Corporation Ltd., relating to land development for their real estate project at Sahara City Homes, Amritsar and that they have received huge amount as consideration, in lieu of providing these services, but have not paid service tax. The officers of the Kanpur Regional Unit of Directorate-General of Central Excise Intelligence, Kanpur commenced investigations against the petitioner. It was found that the work order has been awarded to the petitioner by M/s. Sahara India Commercial Corporation Ltd., in connection with development of land at Sahara City Homes, Amritsar. A letter was written on February 2, 2010 to the petitioner calling upon the balance sheets for the financial years 2006-07, 2007-08 and 2008-09; attested copies of the work order between the petitioner and M/s. Sahara India, Lucknow; payment details, date wise, bank account statement, etc. In response the petitioner informed that they are already assessed with Range II, Central Excise and Service Tax, Division V. Ghaziabad with which they are registered. The Department, thereafter, sent letters on February 24, 2010 and February 25, 2010, to the petitioner asking for the same information. The petitioner informed on March 9, 2010 that they have not provided any service for maintenance or repair of roads during the period June 16, 2005 to July 26, 2009, and that they were awarded order for constructions, widening and strengthening of roads. They also enclosed copy of summons received from Ghaziabad Commissionerate. The respondents thereafter contacted M/s. Sahara India Commercial Corporation Ltd., who provided to them vide letter dated February 17, 2010, the copy of the work order dated June 17, 2006 given to the petitioner for their project "Sahara City Homes, Amritsar", the cost of which was Rs. 6,08,49,000. They also supplied copies of the bill raised by the petitioner to the same amount and payment details. On this information which the Department found to have been suppressed by the petitioners, summons were issued to the petitioner on which one Shri Jitendra Kumar appeared on March 9, 2011 and recorded his statement under section 14 of the Central Excise Act, 1944. He introduced himself as senior manager of the petitioner and claimed exemption from service tax under section 65(97a) of the Finance Act, 1994 for agricultural land development. He expressed his inability to comment on work order dated June 17, 2006.
(3.) On the basis of the aforesaid information which the Department treats to have been suppressed by the petitioner, the show-cause notice has been issued. The notice also refers to the work order and relevant provisions for recovery of service tax, and the expansion of the period of limitation of one year under proviso to section 73(1) to five years, where service tax has not been levied or paid or has been short-paid or erroneously refunded by reason of fraud, or collusion, or wilful misstatement or suppression of facts or contravention of any provisions of this chapter or rules made thereunder with intent to evade payment of service tax.;