Gujarat HC in the case of Linde Engineering India Pvt. Ltd.
Linde Engineering India Pvt. Ltd.
Union of India
Facts of the Case:
By this petition under Articles 226 of the Constitution of India, the petitioners have prayed for the following reliefs:
“9 (a) This Hon’ble Court may be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction quashing the Show Cause Notice (F. N. V ST(Adj) 15/Linde/Commr-I/2017-18) dated 10.11.2017 issued by the Respondent No.3 to the Petitioner No. 1;
b) Pending the present Petition, this Hon’ble Court may be pleased to stay further proceedings against the Petitioner No.1 pursuant to the Show Cause Notice (F. No. V ST(Adj)15/Linde/Commr-I/2017-18) dated 10.11.2017 issued by the Respondent No.3;
c) Ex-parte ad-interim relief in terms of prayer (c) may kindly be granted;
d) Such other and further reliefs as may be deemed appropriate by this Hon’ble Court.”
The facts giving rise to this petition may be summarized as under
1. The petitioner No.1 is a Private Limited Company incorporated under the provisions of the Companies Act, 1956 and is engaged in the business of providing taxable output services under the category of consulting engineer services, erection, commissioning and installation service, construction services other than residential complex, including commercial/industrial buildings or civil structures and works contract services etc. to various entities located in and outside India. Petitioner No.1 is a subsidiary of Linde AG, Germany. The petitioner No.1- Company was filing its returns regularly and was paying appropriate service tax in accordance with the law.
2. It is the case of the petitioners that the petitioners received a communication dated 25.02.2016 from the Superintendent (R-II), Service Tax Division II, Vadodara on the basis of the letter of Assistant Audit Officer/CERA-(iv), directing the petitioner No.1 to submit various documents.
Observations of the Court:
In view of the above legal position, the reliance placed on behalf of the respondents on the various decisions of the Apex Court, which are based on the facts of each case, would not be applicable as the impugned show cause notice is held to be issued without jurisdiction as the respondents could not have issued the same invoking the provisions of Section 73 of the Act, 1994 read with Section 65B(44) and Rule 6A of the Rules, 1994.
The judgement of the Court:
For the foregoing reasons, the petition succeeds and is accordingly allowed. The impugned show cause notice dated 10.11.2017 is hereby quashed and set aside. The rule is made absolute to the aforesaid extent with no order as to costs.