Debangsu Basak, J. - (1.) The petitioners have assailed a show-cause cum demand notice dated October 18, 2016 issued by the Principal Commissioner of Service Tax-I Commissionerate, Kolkata.
(2.) Additional Advocate General appearing for the petitioners has submitted that, the impugned show-cause notice alleges that, the petitioner had availed of CENVAT credit inappropriately. He has referred to Rule 6 (3B) of the CENVAT Credit Rules, 2004 and has submitted that, the petitioners never availed CENVAT credit which was not due to the petitioners. The petitioners had treated the accounts in a particular way. The manner in which the petitioner treated the accounts was known to the authorities. He has referred to pleadings in paragraph 19 to 36 of the writ petition and has submitted that, the manner in which the CENVAT credit was being claimed by the petitioners, was made known to the authorities in diverse proceedings. At no stage, did the authorities question the treatment of the accounts in such manner. He has submitted that, the period for which, the show-cause notice has been issued was covered by the proceedings initiated in respect thereof by the department, independent of the show-cause notice. Therefore, there is no question of suppression of any fact by the petitioners. The department cannot invoke the extended period of limitation. In support of such contention, he has relied upon (Continental Foundation Joint Venture Holding, Nathpa, H.P. v. Commissioner of Central Excise, Chandigarh-I, 2007 10 SCC 337), (Anand Nishikawa Co. Ltd. v. Commissioner of Central Excise, Meerut, 2005 7 SCC 749) and (Uniworth Textiles Limited v. Commissioner of Central Excise, Raipur, 2013 9 SCC 753). Relying upon (Raja Mookherjee & Ors. v. Wealth-Tax Officer & Ors., 1993 204 ITR 276), (Nayek Paper Industries Pvt. Ltd. v. Union of India, 1991 56 ELT 31) and (Jayantilal Thankkar & Company v. Union of India, 2007 8 STR 312 (Bom.)), he has submitted that, existence of statutory alternative remedy is not a complete bar to the maintainability of a writ petition. In circumstances where, the authorities have invoked jurisdiction without the jurisdictional fact required for the assumption of jurisdiction being present, such an action of the authority can be challenged under Article 226 of the Constitution of India. He has submitted that, the impugned order suffers from lack of jurisdiction and is therefore required to be quashed.
(3.) Learned Advocate appearing for the respondents has submitted that, the impugned show-cause notice states that, the petitioners are guilty of contravention of Sections 66 (A), 67 and 68 of the Finance Act, 1994. He has also referred to Rules 6 and 9 of the CENVAT Credit Rules, 2004 and submitted that, the impugned show-cause notice, spells out the grounds on which the same has been issued. The facts constituting the assumption of jurisdiction are stated in the impugned show-cause notice. The extended period of five years is available on account of the petitioner being guilty of making misstatements in order to escape and/or evade tax. These facts can be conveniently adjudicated upon by the statutory authority. He has submitted that, the impugned show-cause notice gives adequate reasons for the invocation of the extended period. The department did not have knowledge of the accounts of the petitioner prior to the discovery thereof upon an investigation being undertaken, as stated in the impugned show-cause notice. Therefore, the department cannot be said to be with the knowledge of the facts constituting the subject matter of the impugned show-cause notice prior to the date of the investigation. The impugned show-cause notice is within time. The pleadings in the writ petition as relied upon by the petitioners do not denude the department with the jurisdiction to issue the impugned show-cause notice. According to him, a Writ Court should not interfere, where there exists a statutory alternative remedy. He has relied upon (C.C.T. Orissa & Ors. v. Indian Explosives Ltd., 2008 AIR(SC) 1631), (United Bank of India v. Satyawati Tondon & Ors., 2010 AIR(SC) 3413), (Commissioner of Income-tax, Gujarat v. Vijaybhai N. Chandrani, 2013 AIR(SC) 3518) and (Commissioner of Income Tax & Ors. v. Chhabil Dass Agarwal, 2014 1 SCC 603) in support of his contentions.;