Aniruddha Bose, J. - (1.) Affidavit-of-service is filed in Court today. Let the same be kept with records.
(2.) The present appeal has its origin in a notice to show cause issued by the Commissioner of Service Tax on 17th October, 2012. This notice required the appellants to respond, inter alia, to the demand of the Revenue under the following heads:- "9. The said assessee is, therefore, required to show cause to the Commissioner of Service Tax, Kolkata, 3d Floor, Central Excise and Service Tax Bhawan, E.M. Bypass, 180, Shanti Pally, Kolkata-700107 within 30 (thirty) days of receipt of this notice as to why:- (a) the amount of Service Tax to the tune of Rs. 3,52,57,141/- (Rupees Three Crores fifty two lacs fifty seven thousand one hundred and forty one only) Education Cess of Rs. 7,05,143/- (Rupees Seven lacs five thousand one hundred and forty three only) and S.H.E. Cess of Rs. 3,52,572/- (Rupees Three lacs fifty two thousand five hundred and seventy-two only) totalling to Rs. 3,63,14,856/- (Rupees Three Crores sixty three lacs fourteen thousand eight hundred and fifty six only) which was paid for the period 2007-08 to 2011-12 [as shown in Annexure-A] and which includes amount of Rs. 1,19,33,424/- collected from the recipients of taxable service but paid to the credit of the Central Government [as shown in Annexure-B] should be demanded and recovered from them by invoking extended period of limitation under proviso to Section 73(1) of the said Act and under Section 73(A)(3) of the said Act as discussed hereinabove; (b) interest at the appropriate rate on the said amount of Service Tax, cess, totalling to Rs. 3,63,14,856/- (Rupees Three Crores sixty-three lacs fourteen thousand eight hundred and fifty six only) as due should be demanded and recovered from the said assessee under Section 75 of the said Act and also interest in respect of the abovementioned Service Tax amounting to Rs. 1,19,33,424/- which was collected from the recipients of taxable service but paid to the credit of the Central Government should be demanded and recovered from the said assessee under Section 73(B) of the said Act; (c) penalty under Section 77 of the said Act should be imposed upon the said assessee for non-obtaining Service Tax Registration Certificate for other services and non-submission of periodical ST-3 returns in respect of the said services as discussed earlier; (d) penalty under Section 78 of the said Act should be imposed upon the said assessee for wilful suppression of taxable value realized by the said assessee and for violation of the above-mentioned provisions of the said Act and the said Rules; 10. Shri Kushal Maitra, Director is also required to show cause before the Commissioner of Service Tax, Central Excise and Service Tax Bhawan, 3rd Floor, 180 Rajdanga Main Road, Shanti Pally, Kolkata-700017 within 30 (thirty) days of receipt of this notice as to why penalty in terms of Section 9AA of the Central Excise Act, 1944 as made applicable to Service Tax vide Section 83 of the Finance Act, 1944 should be imposed on him for all the aforesaid acts of omission or commission of the assessee resulting in evasion of Service Tax."
(3.) The total demand was of Rs. 3,63,14,856/- (Rupees three crores sixty three lakhs fourteen thousand and eight hundred fifty six only). There had been adjudication proceeding thereafter and the adjudicating authority confirmed part of the demand of Rs. 2,35,83,131/- and dropped the rest of the demand. Penalty of Rs. 2,35,83,131/- was however imposed. This order was passed by the adjudicating authority on 15th March, 2016. On a writ petition filed by the appellants, the aforesaid order was set aside by a learned Single Judge of this Court on 19th May, 2016. That writ petition was registered as W.P. No. 9224(W) of 2016. In the order, however, the appellant was required to deposit a sum of Rs. 1,00,00,000/- (rupees one crore), as a condition for the invalidation order being made operational. This was to be followed by adjudication afresh. Thereafter, fresh adjudication proceeding had started and it is the contention of the appellant that certain findings in the first adjudication proceeding which went in favour of the appellant were reversed and the appellant was held liable under those heads as well in the second adjudication proceeding. In this adjudication proceeding, the entire demand in the show cause notice was confirmed, though the first adjudicator had dropped part of the demand. The appellant challenged the second adjudication order, which was passed on 18th August, 2016 by instituting a writ petition, registered as W.P. No. 26336(W) of 2016. The main ground of challenge to the order passed in the second adjudication proceeding was that the points decided against the appellant were beyond the scope of the show cause notice. The learned First Court dismissed the writ petition, inter alia, holding : "The applicability of the section under which the petitioners have been charged is substantiated to be incorrect. Although there are differences between Section 73A and Section 73 of the Act of 1994, the assessee was well aware of the charges levelled against it. The assessee had answered the charges. The objections were duly considered and negated in the impugned order.";