- (1.) A short point involved in this writ petition relates to making out of a case by the adjudicating officer beyond the show cause notice. In other words, whether the adjudicating officer or the Appellate Authority or the Tribunal can travel beyond the case made out in a show cause notice. Before proceeding to deal with the point as narrated above, it would be apposite to record the excerpts from the show cause notice to ascertain as to the exact case made out therein, which runs: "7. Contravention of statutory provisions: Thus, the said M/s. Maheshwari Enterprise, Rankganj, Burdwan, WB the noticee, appeared to have contravened (a) the provisions of Section 67 and 68 of the Finance Act, 1994 as amended read with Rule 6 of the Service Tax Rules, 1994 as amended, in as much as they failed to pay the Service Tax at the rate specified in Section 66 in the required manner within the prescribed period; (b) the provisions of Section 73 of the Finance Act, 1994 as amended read with Rule 6 of the Service Tax Rules, 1994 as amended, in as much as they had short paid Service Tax then the actual Service Tax payable at the rate specified in Section 66 in the required manner within the prescribed period; (c) the provisions of Section 70 of the Finance Act, 1994 as amended read with Rule 7 of the Service Tax Rules, 1994 as amended, in as much as they failed to assess the tax due on the services provided by them and to furnish the return in prescribed form and in prescribed manner and at the prescribed frequency; and (d) the provisions of Section 91 and Section 95 of the Finance (No. 2) Act, 2004 and Section 136 & Section 140 of the Finance Act, 2007 in as much as they failed to pay the appropriate Education Cess and Secondary & Higher Education Cess on the appropriate Service Tax payable by them."
(2.) Alleging the contravention of the aforesaid statutory provisions the demand was made to the tune of Rs. 2,22,97,430/- together with the Education Cess of Rs. 4,45,950/- and Rs. 1,81,412/- and further penalty and interest under the provision of Sections 75, 76, 77 and 78 of the Finance Act, 1994.
(3.) The adjudicating officer in its Order-in-Original dated 30th June, 2011 found that the petitioner has violated Rule 3(3) of the Works Contract (Composition Scheme for Payment of Service Tax) Rules, 2007 and confirmed the demand, so raised, in the show cause notice. The said order is challenged before the CESTAT and an application seeking the dispensation of pre-deposit is also taken out therein. The order impugned in this writ petition pertains to the disposal of an application seeking dispensation of the pre-deposit on the ground that neither the adjudicating officer nor the Tribunal can make out a case which has not been made out by the authority in the show cause notice.;