- (1.) This writ petition has been preferred challenging the order dated 11.08.2014, which is at Annexure 5, mainly for the reason that the amount demanded under Section 87 of the Finance Act, 1994 is not based upon any adjudication, on the contrary now at a later stage demand-cum-show cause notice dated 17.10.2014 has been issued, which is at Annexure 8 to the supplementary affidavit filed by the petitioner, which includes2 the amount of Rs. 4,45,97,399/- towards the Service Tax. It is further submitted by the counsel for the petitioner that in the letter dated 11.08.2014, which is at Annexure 5, which is under challenge, it has been stated that the amount of Rs. 4,45,97,399/- towards Service Tax, which is payable by the petitioner, is undisputed and unpaid. This is factually wrong statement. In fact, the said amount is highly disputed and the petitioner has already written a letter dated 13.11.2014, which is at Annexure 9 to the 2nd supplementary affidavit, admitting his liability, upon exact calculation approximately at Rs. 3.05 crores. Moreover, the demand-cum-show cause notice issued by the respondents has also been replied by this petitioner, but, for any reason whatsoever the respondents have not decided the demand-cum-show cause notice dated 17.10.2014. It is also submitted by the counsel for the petitioner that the demandcum-show cause notice dated 17.10.2014 includes the disputed amount of Rs. 4,45,97,399/-. The petitioner has also deposited amount approximately at Rs. 3.21 crores. Thus, more than admitted amount by this petitioner has been deposited and, therefore, notice under Section 87 of the Finance Act, 1994 is not tenable at law and hence, it deserves to be quashed and set aside. It is further submitted by counsel for the petitioner that notice under Section 87 of the Finance Act, 1994 (hereinafter referred to as the Act, 1944 for the sake of brevity) dated 11.08.2014 cannot be issued unless notice under Section 73-A (3) of the Act, 1994 is given, and hence also Annexure 5, notice under Section 87 of the Act, 1994 deserves to be quashed and set aside.
(2.) Counsel appearing for the petitioner has also relied upon the decision rendered by Hon'ble High Court of Gujrat in the case of Technomaint Contractors Ltd. Vs. Union of India, 2014 73 VST 247 equivalent citation (2014) 44 GST 545 (Gujrat) and specially upon paragraph 6 thereof. Similarly counsel for the petitioner has also relied upon the decision rendered by the Hon'ble High Court of Uttarakhand in the case of R.V. Man Power Solution Vs. Commr. Of Cus. and Central Excise, 2014 69 VST 528 equivalent citation (2014) 45 GST 567 (Uttarakhand). Counsel has specially relied upon paragraph 9 of the said decision. On the basis of the aforesaid decisions, it is submitted by counsel for the petitioner that unless the proceeding under Section 73 of the Act is completed recovery notice under Section 87 issued by the respondents, dated 11.08.2014 (Annexure 5) could not have been issued by the respondents and hence, also the said notice under Section 87 of the Act dated 11.08.2014 deserves to be quashed and set aside.
(3.) Counsel for the respondents submitted that the liability towards service tax at Rs. 4,45,97,399/- has been admitted by this petitioner when statement under Section 14 of the Excise Act was recorded. Moreover, he has also given detailed calculation vide its letter dated 23.04.2014 and, therefore, straightway notice under Section 87 of the Finance Act has been issued, which is at Annexure 5 of the memo of this petition, and, hence, this petition may not be entertained by this Court. Even otherwise also the respondents has also issued demand-cum-show cause notice dated 17.10.2014 under Section 73 of the Act of 1994, which will be adjudicated upon by the respondents and the order passed by the respondents is always appealable order and, therefore, also this petition may not be entertained by this Court.;