S. MURALIDHAR, J.

1. This writ petition by eBIZ.Com Private Limited (eBIZ), directed against Union of India (Respondent No. 1), the Director General of Central Excise Intelligence (DGCEI - Respondent No. 2) and the Commissioner Audit-II of the Ghaziabad Commissionerate (Respondent No. 3), seeks a declaration that the search conducted by the DGCEI on the business premises of the Petitioner eBIZ on 19th January, 2016 apprehending evasion of payment of service tax, as well as the summons issued to eBIZ on 19th and 21st January 2016 by the DGCEI are illegal and ultra vires the provisions of the Finance Act, 1994 (FA). Respondent No. 3 was impleaded pursuant to the order dated 28th January, 2016 passed by this Court.

Background facts

2. eBIZ is engaged in the business of developing and selling various online/offline educational software packages as well as providing holiday accommodation booking packages. eBIZ is registered with the Service Tax Department (ST Department) and has been paying service tax since the year 2001. eBIZ describes the services rendered by it of booking of tour packages as that of a tour operator. It has been filing its ST returns regularly. It is stated that in every half-yearly return filed by the Petitioner, exemption available to tour operators under Notification no. 26/2012-ST dated 20th June 2012 has been claimed. eBIZ states that the said returns have been duly verified by the ST Department.

3. It is stated that on 12th January 2007, the ST Department conducted a search in the premises of eBIZ as a result of which eBIZ was compelled to deposit service tax of Rs. 25,55,000/- and interest thereon amounting to Rs. 2,59,000/-. eBIZ further states that consequent upon the said search, the ST Department issued a show cause notice (SCN) dated 3rd July 2007. Pursuant thereto, an adjudication order was passed and eBIZ paid a penalty amount of Rs. 6,37,500 without prejudice to its right to go in appeal against the said order. By an order dated 29th August 2012, the Commissioner, Service Tax (Appeals) set aside the order passed by the adjudicating authority on the aforesaid SCN. Consequently, on 27th January 2014 eBIZ applied for the refund of the amount paid in the sum of Rs. 34,51,500/-. It is stated that till date the said refund application has not been disposed of by the ST Department.

4. eBIZ states that for a second time, on 4th October 2012, a search was conducted by the ST Department in its premises. The statement of Mr. Pawan Malhan, Managing Director (MD), eBIZ was recorded and various documents were seized/resumed. However, no SCN was issued pursuant to the said search. A copy of the panchnama dated 4th October 2012 revealed that inter-alia the documents seized included the file containing the ST-3 returns from April 2009 to March 2012; copies of balance sheets from Assessment Year (AY) 2007-2008 to 2011-2012 and the trial balance for 2012-2013; a file containing miscellaneous papers and two brochures. Summons were issued on the same date to eBIZ requiring it to produce the ST returns for 2007-2008 and 2008-2009; copy of agreement entered into with M/s. Balaji Digital Solutions (P) Limited; copy of agreements/contracts entered into with Hotels or Travel agents for tour packages and list of associates of Noida and Bulandshahr for FY 2011-2012.

5. eBIZ states that in 2014 the ST Department conducted an audit of the records of eBIZ for the years 2011-2012 and 2013-2014. eBIZ was asked to deposit Rs. 73,387/- together with interest and penalty. It is stated that on 12th December 2014, eBIZ deposited Rs. 75,589/-. When discrepancies were pointed out by the ST Department for other years, they too were similarly rectified. Further, whenever there was a dispute, SCNs were issued which were then adjudicated. It is pointed out that in every half-yearly return filed by eBIZ, on the gross amount received by it, it was claiming exemption under Notification No. 26/2012-ST and the balance taxable amount as well