Point of Law : Power so exercised by the authority is a statutory power conferred upon the respondent authorities under Section 73 of the Finance Act of 1994 and as such the issuance of the said show cause notice cannot be said to be without jurisdiction.

JUDGMENT :

Heard Mr. R. S. Mishra, the learned counsel for the petitioner and Mr. S. C. Keyal, the learned counsel appearing on behalf of the GST Department.

2. The instant writ petition has been filed challenging the Demand-cum-Show-Cause Notice issued under C.No.V(15)92/ADJ/ST/COMMR /DIB/2020/7125 dated 31.12.2020 as well as the Corrigendum dated 21.02.2022 and for a direction that the respondent authorities should provide an opportunity of pre-show cause notice consultation to the petitioner.

3. The case of the petitioner is that he is a businessman executing contracts primarily work contracts with Public Sector Undertaking or the Government of India Enterprises under the name and style of M/s Sanjib Das. The petitioner is an assessee registered under Section 69 of the Finance Act, 1994 read with Rule 9 of the Service Tax Rules, 1994 bearing registration No.AGVPD4317LST001.

4. It is the case of the petitioner that the Central Board of Excise and Customs had issued a Master Circular on Show Cause Notice, Adjudication and Recovery dated 10.03.2017 on the subject of “Show Cause Notices, Adjudication Proceedings and Recovery”. In terms with Clause 5 of the said Master Circular, the Central Board of Excise and Customs (for short, the CBEC) had made pre-show cause notice consultation by the Principal Commissioner/Commissioner prior to the issuance of show cause notice in cases involving demands of duty above Rs.50 lakhs (except for preventive/offence related SCN’s) mandatory vide instruction issued from F No.1080/09/DLA/MISC/15 dated 21.12.2015. It was also stipulated that such consultation shall be done by the adjudicating authority with the assessee concerned. It was mentioned that the said is an important step towards trade facilitation and promoting voluntary compliance and to reduce the necessity of issuing show case notice. The petitioner further states in his writ petition that the petitioner was served with a Demand-cum-Show-Cause Notice under C.No.V(15)92/ADJ/ST/COMMR/DIB/2020/7125 dated 31.12.2021 under Section 73 (1) of the Finance Act, 1994 alleging inter-alia that on scrutiny of Form 26AS collected from the Income Tax Department, it was seen that the TDS was deducted by the various Service Recipients and as the petitioner did not submit any documents regarding the service provided by him there are reasons to believe that the income amount on which the petitioner paid the income tax was collected against the services provided by the petitioner. It was also mentioned that from a perusal of Form 26AS, it appears that the petitioner had rendered taxable services amounting to Rs.7,95,64,992/-and on such value of services, the service tax amounting to Rs.1,15,97,072/-was required to be paid by the petitioner which the petitioner failed to pay and thereby the petitioner was asked to show cause as to why the service tax amounting to Rs.1,15,97,072/-on the services rendered during the period from F.Y. 2014-15 (October, 2014 to March, 2015) to F.Y. 2017-18 (upto June, 2017) should not be demanded/recovered from the petitioner under the proviso of Section 73 (1) of the Finance Act, 1994; as to why interest at the appropriate rates for the period from the first day after due date till the date of actual payment shall not be charged and recovered for nonpayment of service tax (including Cess) as provided under Section 75 of the Finance Act, 1994 and as to why penalty should not be imposed upon the petitioner separately under the proviso of Sections 77 and 78 (1) of the Finance Act, 1994 for nonpayment and short payment of service tax (including Cess).

5. The petitioner referring to Clause 5 of the Master Circular stipulates that the issuance of the show cause notice dated 31.12.2020 without the pre-show cause consultation is in violation to the Master Circular, and consequently, the issuance of the said show cause notice is without jurisdiction. The petitioner further states in his writ petition that the petitioner had received the Co