In a recent case of M/s. Shubham Electricals versus CST & ST, Rohtak, CESTAT of New Delhi (2015(6) TMI 786) held that Section 72 of The Finance Act, 1994 which connotes the implication of Best Judgement assessment, can only be used to determine the quantum of services rendered. There cannot be best judgment assessment regarding the specific service provided. There can be no best judgment assessment, for instance as to whether the tax liability is for income tax, sales tax, excise duty, customs duty, service tax or professional tax. A conclusion as to the taxable event and the liability to tax under the appropriate fiscal legislation authorising the levy and collection of such tax is a matter for determination with precision and clarity and not by a process of guess-work or speculation.
In the cited case, the SCN claimed that the appellant had kept the facts undisclosed in so much as the service tax amounting Rs. 1,53,14,782/- for the period 2006-2007 to 2010-2011, adding on with the interest and penalty under Section 75, 77 and 78. Penalty under section 76 was dropped on account of mutually exclusive nature of penalty u/s 76 and 78. Further, the true nature of the service could not be enumerated due to lack of facts as per the revenue. In such case, BJA was applied exaggerating the service tax demand as stated supra.
Appellant had provided copies of 20 work orders executed in relation to CWG Projects. From the description of the works officers could have classified the several works into the appropriate taxable service which may appropriately govern rendition of these services.
Hon’ble CESTAT observed that the disinclination to employ the ample investigatorial powers conferred by the Act is illustrative of gross Departmental failure and cannot afford justification for passing an incoherent and vague adjudication order. The failure to gather relevant facts for issuing a proper show cause notice cannot provide justification for a vague and incoherent show cause notice which has resulted in a serious transgression of the due process of law. Hence, BJA in this case is not tenable.
