Debangsu Basak, J. - (1.) The petitioners assail an order dated August 18, 2016 passed by the Principal Commissioner of Service Tax-1, Kolkata.
(2.) Learned Advocate appearing for the petitioners contends that, despite the writ petitioners having a statutory right of appeal, a writ petition is maintainable against the impugned order. He relies upon 2016 (43) S.T.R. 482 (Cal.) (Sourav Ganguly v. Union of India).
(3.) Learned Advocate for the petitioners submits that, the impugned order was passed on the basis of a show cause notice dated October 17, 2012. He submits that, the show cause notice is vague and has been issued on the basis of assumption. It does not contain any allegation that, the first petitioner is liable to pay Service Tax. He submits that, the burden of proof is on the taxing authority to show that, a particular receipt is taxable and relies upon 1996 (87) E.L.T. 12 (S.C.) (Union of India v. Garware Nylons Ltd.) in support of such contention. Referring to 2010 (258) E.L.T. 48 (Cal.) (Commissioner of Central Excise, Haldia v. Lord's Chemicals Ltd.) and 2007 (217) E.L.T. 343 (Cal.) (Collector of Customs, Calcutta v. Hindalco Industries Ltd.) he submits that, a show cause notice cannot be issued on the basis of presumptions. He relies upon 1983 (13) E.L.T. 1342 (S.C.) (East India Commercial Co. Ltd., Calcutta v. Collector of Customs, Calcutta) and submits that, notice issued contrary to the law laid down by the High Court would be invalid and the proceedings themselves would be without jurisdiction. He relies upon 2011 (266) E.L.T. 422 (S.C.) [Oryx Fisheries (P) Ltd. v. Union of India] and submits that, the persons proceeded against must be told of the charges against him so that he can take his defence and prove his innocence. In the event, a new case is made out such a course of action would be without jurisdiction. He relies upon 2006 (196) E.L.T. 400 (S.C.) (Hindustan Poles Corporation v. Commissioner of Central Excise, Calcutta) and submits that, the revenue has to apply its mind before issuance of a show cause notice. He refers to the merits of the matters and submits that, the show cause notice does not analyze the activities of the first petitioner. The receipts which are claimed to be taxable are not taxable. The department has taken figures from the balance-sheet of the first petitioner which is bad in law. The department has also acted in violation of the principles of natural justice without putting the petitioner on notice that the receipts of the first petitioner are taxable under the provisions of the Finance Act, 1994. Referring to Section 9AA of the Central Excise Act, 1944, as applicable to Service Tax in view of Section 83 of the Finance Act, 1994, he submits that, the authority has no jurisdiction to impose penalty on the Directors of the first petitioner being the second and the third petitioner. He questions the ability of the department to institute any criminal proceeding against the petitioners. He submits that, an order passed under Section 9AA of the Central Excise Act, 1944 is not appealable.;