Custom, Excise & Service Tax Tribunal
Shri Numal Saikia vs -Dibrugarh Commissionerate on 11 August, 2022
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE
TRIBUNAL, KOLKATA
REGIONAL BENCH - COURT NO. 2
Service Tax Appeal No. 75969 of 2021
(Arising out of Order-in-Original No.03/ADJ/ST/Pr. COMMR./DIB/21-22 dated
22.10.2021 passed by the Principal Commissioner of CGST & CX, Dibrugarh)
M/s Numal Saikia .... Appellant
Banipur Bye Lane-11, P.O. Banipur,
Via C.R. Building, Dibrugarh, Assam-786 003.
Versus
Principal Commissioner of Central .... Respondent
Goods and Service Tax & Customs, Dibrugarh
Milan Nagar, Lane:F, P.O. C.R. Building,
Dibrugarh, Assam-786 003.
Appearance:
Shri M. P. Bagaria, Chartered Accountant for the Appellant
Shri K. Chowdhury, Authorized Representative for the Respondent
CORAM:
HON'BLE MR. P.K. CHOUDHARY, MEMBER (JUDICIAL)
HON'BLE MR. P. ANJANI KUMAR, MEMBER (TECHNICAL)
FINAL ORDER NO. 75470/2022
Date of Hearing: 16.06.2022
Date of Decision: 11 August 2022
Per: P. ANJANI KUMAR
This appeal is directed against order-in-original dated
22.10.2021 passed by Principal Commissioner CGST & CX, Dibrugarh.
2. Brief facts of the case are that the appellant have been
alleged to have provided taxable services under the category of
"Works Contract Services" as define under Section 65(105)(zzzza) of
Finance Act, 1994; Anti-Evasion Branch of the Commissionerate has
initiated enquiry against the appellant and asked for copies of 26AS,
audited balance sheet and copies of work order/contracts for the
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period 2013-14 to 2017-18 conducted; copies of relevant documents
were also obtained from Income Tax, Dibrugarh on completion of the
investigation it appear to the department that the appellant provided
services to various state and central government departments and
have received an amount of Rs.44,40,35,710/- during the period and
have not paid any service tax as applicable. Accordingly, a show cause
notice dated 21.10.2019 was issued to the appellant and the same
was confirmed by the impugned order vide which service tax of
Rs.6,39,09,190/- was confirmed along with interest and equal penalty.
Hence this appeal.
3. Shri M. P. Bagaria Learned Chartered Accountant appearing
on behalf of the appellant and submits that vide written submission
dated 23.12.2019 before the commissioner and during the personal
hearing on 15.10.2021 the appellant explained that all the works were
executed for government departments and are in progress; all the
work is exempt; related documents have already been submitted to
the department. He submits that as can be seen from the works
contracts and invoices the appellant provided the services to PWD
authorities, Air Port Authority of India, Indian Railways and Oil India
Ltd. in construction, erection, commissioning, installation, completion,
fitting out, repairs, maintenance, renovation, or alteration of a road,
bridge, tunnel or terminal for road transportation for use by general
public; these works are exempt under entry no.13 (a)/12/12A/14 of
exemption notification no.25/2012-S.T. dated 20.06.2012
4. Learned Chartered Accountant submits that the show cause
notice is liable to be set aside being issued in violation of the
instructions contend in Board's Circular 1053/02/2017-CX dated
10.03.2017 wherein a pre show cause notice consultation was
mandated for show cause notice involving duty demand of Rs. 50
Lakhs and above. We further submits that the entire case was made
out on one basis that the appellant failed to submit any
invoice/running bills, working sheet to established the co-relation with
the gross amount received in form 26 AS during the period in terms of
the contract.
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5. Learned Authorized Representative appearing on behalf of
the Department reiterates the findings of the impugned order.
6. Heard both sides and perused the records of the case. Brief
issues that requires to be considered in the impugned case is to
whether the department was right in demanding service tax from the
appellants on the basis of 26 AS statements and as to whether the
impugned show cause notice is issued in violation of the instruction
issued by the Board.
7. The appellants submits that they have undertaken various
works as per the work orders given by PWD authorities, Air Port
Authority of India, Indian Railways and Oil India Ltd. in construction,
erection, commissioning, . installation, completion, fitting out, repairs,
maintenance, renovation, or alteration of a road, bridge, tunnel or
terminal for road transportation for use by general public; these works
are exempt under entry no.13 (a)/12/12A/14 of exemption notification
no.25/2012-S.T. dated 20.06.2012. Ongoing though the order-in-
original, we find that the Learned Commissioner has confirmed the
demands as per the receipts by the appellants as indicated in 26 AS
statements, copies of the work orders wherever submitted by the
appellant. Learned Commissioner's findings, on each of the heading of
the works during the various financial years, are that "However, the
noticee failed to submit copies of Invoice/ Bill payment voucher for
correlating the payment so received by him and the nature of work
executed. Therefore, the benefit of exemption under Notification No.
25/2012-ST dated 20.06.2012 cannot be extended as claimed by the
notice" and that " Therefore, I have no other option but to maintain
the allegation made in the show cause notice. We find that the manner
in which the allegation were raised in the show cause notice and
confirmed by the impugned order is not legally correct. We find that
as the department is alleging that the appellants have evaded
payment of service tax, it is incumbent upon the department to prove
the same with reliable evidence. We find from the impugned
proceedings that the details of payment received by the appellant were
gleaned from the 26 AS statements and other document, like ledger,
profit and loss account, balance sheet etc. Thereafter, the appellant
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was asked to submit the necessary details like work orders, invoices
etc. No other investigations to prove that the appellants have rendered
taxable service and received remuneration for the same, were
conducted. The Department has not even bothered to collect
necessary documents from the respective government authorities at
whose behest, the appellant is alleged to have under taken the works
orders. The nature of such works alleged to have been under taken by
the appellants, the taxability thereof under Finance Act, 1994 and
exemption if any available was not discussed at all in the impugned
order. The appellants contentions that the works under taken by them
were on behalf of the government department and for use of general
public and that the same are exempt vide notification no.25/2012 S.T.
dated 28.06.2012 were not at all considered and discussed. Under the
circumstance we hold that the Department has not discharged its onus
to prove that the appellant is liable to pay service tax. It is settled
principle of law that unless and until the clear analysis of the activity
done by the assessee is carried out, demand of service tax cannot be
confirmed. Therefore, we find that the impugned order is not legally
sustainable.
7.1 We find that in the case of Calvin Wooding Consulting Ltd. Vs.
Commissioner of C.Ex.Indore 2007 (7) S.T.R. 411 (Tri. - Del.)
Tribunal observed as under :
21. The liability of the recipient cannot arise merely from the fact that,
the income-tax was deducted at source, which was the requirement of the
Income-tax Act, on the recipient who made payment to the foreign
supplier. Such a statutory requirement, as exists under the Income-tax
law on the person making the payment to deduct tax at source, as a tax
collecting agency of the Revenue, does not exist under the provisions of
the Service Tax law, and no obligation was cast upon the recipient of the
service to make any deduction from the amounts payable by way of
consideration, under the statutory provisions. Authorization to pay
Service tax under a contractual arrangement which obliged the
recipient to pay the tax and file return, was a matter distinct and
different from a statutory obligation to make tax deduction as a collecting
agency, as envisaged under the Income-tax law. The Commissioner
(Appeals) has, therefore, rightly set aside the orders-in-original insofar
as respondent of Service Tax Appeals Nos. 170, 171 and 173 of 2005 was
concerned.
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7.2 We also find that Allahabad Bench of the Tribunal, in the case of
Lord Krishana Real Infra Pvt. Ltd, in appeal no. ST/70274/2018-CU
(DB), vide final order no. 70126/2019 held that
5. ....
We also note that there were no other record of the appellant which
were taken into consideration for entertaining a prima-facie view that
appellant was required to pay short paid service tax of around Rs.8
crores for the said period than the information that was available in
returns in the form 26AS. In this regard we note that this Tribunal had
an occasion to examine sustainability of demand raised only on the
basis of form 26AS. It was held by this Tribunal in the case of Sharma
Fabricators Pvt. Ltd. Vs Commissioner of Central Excise, Allahabad
reported at 2017 (5) GSTL 96 (Tri.-All.) as follows:-
"3.Heard the ld. Counsel for M/s. Sharma he has basically
argued that the said Show Cause Notices were not issued by
examining the books of account maintained by M/s. Sharma.
The Show Cause Notices were based on the presumptions and
third party information. He has argued that even when the
payments were not made by the clients but the clients booked
the expenditure in their books of account they were required
to pay the related tax deducted at source to the exchequer and
issue a certificate of TDS and incorporate the same in the
return called 26AS filed with the Income Tax Authorities and
such information cannot be the basis for arrival of the
consideration received by the service provider. He has
submitted that both the Show Cause Notices were issued
without examining the books of account maintained by M/s.
Sharma and were issued on the basis of presumptions about
the consideration received by M/s. Sharma. The
considerations taken into account for issue of Show Cause
Notices was in no way near to the actual consideration
received by M/s. Sharma during the relevant period which
should be the basis for arriving at the assessable value.
He has stated that they had elaborated before the Original
Authority various reasons for discrepancies in the figures
arrived at presuming the considerations received by M/s.
Sharma on the basis of such TDS Certificates and the
figures in the returns. He has further relied upon this
Tribunal's Final Order in the case of Alpa Management
Consultants P. Ltd. v. Commissioner of Service Tax,
Bangalore reported in 2007 (6)
S.T.R. 181 (Tri. - Bangalore). He submitted that this
Tribunal in the said case has held that demands, solely based
on the income-tax returns for liability of Service Tax under
Finance Act, 1994 is not sustainable. In respect of appeal
filed by Revenue ld. counsel for M/s. Sharma has contended
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that the grounds of appeal are travelling beyond the Show
Cause Notice and therefore that is not sustainable. He has
further elaborated that cargo handling was brought in as
ground by Revenue in the appeal filed by Revenue
whereas that issue was not at all dealt with in the Show
Cause Notices dated 20- 4-2009 & 13-10-2009.
4. Heard the ld. DR, who has presented the grounds of
appeal in appeal filed by Revenue.
5. Having considered the rival contentions and on perusal of
record, we find that in the cases of both the Show Cause
Notices dated 20-4-2009 & 13-10-2009 there is no whisper of
examination of books of account maintained by M/s. Sharma
to arrive at the value of consideration received by them.
Surprisingly the draft audit report was the relied upon
document. It may be worth mentioning here that the purpose
of audit report is to point out any discrepancy to the notice
for examination by the executive and it is the duty of
executive to examine the records and examine the objection
raised with reference to the records and facts of the case and
take a view whether there is a sustainable case for issue of
Show Cause Notice. Such vital aspects of framing of charges
have been missing in the present case. The charges in the
Show Cause Notice have to be on the basis of books of
account and records maintained by the assessee and other
admissible evidence. The books of account maintained by
M/s. Sharma were not looked into for issue of abovestated
two Show Cause Notices. Therefore, the transactions
recorded in the books of account cannot be held to be
contrary to the facts. Therefore, we hold that the said Show
Cause Notices are not sustainable. Since the said Show
Cause Notices are not sustainable, appeal bearing No.
ST/890/2010 filed by M/s. Sharma is allowed and appeal
bearing No. ST/949/2010 filed by Revenue is dismissed.
Miscellaneous Applications also stand disposed of. Cross
Objection also disposed of."
From the record it is very clear that none of the records of
appellant were taken into consideration for framing of charges that
appellant had short paid service tax to the tune of around Rs.8 crores
and the said charges were framed only on the basis of information in
the form 26AS. We further note that the audit report as explained by
the Chartered Accountant for appellant found that Cenvat credit to the
tune of Rs.6,38,024/- was inadmissible to the appellant out of total
Cenvat credit of Rs.2,21,35,916/- whereas the learned Original
Authority has disallowed the same only on the basis that original
documents were not produced before him. We accept the claim by the
appellant that original documents were seen by the audit party visited
by the appellant and such evidence was not taken into consideration
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by the Original Authority. The learned Original Authority was
required to follow the principles of natural justice and direct the
appellant to produce the original documents on the basis of which
Cenvat credit was availed by the appellant, in case he had doubt
about the availability of original documents with the appellant. The
order of Original Authority presuming that the appellant did not
have original documents is not sustainable in respect of availment of
Cenvat credit. Further, there was no proposal in the said show cause
notice to deny said Cenvat credit. Further, we find that on the basis of
form 26AS return filed under Income Tax Act without examining any
other records of the appellant. Charges of short payment of service tax
to the tune of Rs.8 crores were made against the appellant. It was
possible for Revenue to know the transactions between other parties &
appellant from form 26AS. Revenue could have investigated into the
nature of such transactions & should have established that the said
transactions were in respect of provision of said service. Then alone the
charges of short payment of Service Tax would have sustained. We find
that Final Order of this Tribunal in the case of Sharma Fabricators
Pvt. Ltd. (supra) is squarely applicable in the present case. We,
therefore, hold that Revenue did not discharge its burden to prove short
payment of service tax. We also hold that the said show cause notice
dated 05.10.2016 is not sustainable.
7.3 We also find that similar view was taken by the Tribunal
in the cases of Final order No. 75544/2019 in the case of M/s Ved
Security by Kolkata Bench in appeal no. ST/75424/2018 and Final Order
No. 71246/2019 in the case of M/s Pappu Crane Service by Allahabad
Bench in service tax appeal no. ST/70707/2018 (DB). In view of the
above we find that the demands raised and confirmed in the impugned
order are not sustainable.
8. Moreover, the appellants submits the issuance of the show
cause notice is in-violation of circular issued by CBIC. We find that
CBIC vide circular no. 1053/02/2017 dated 10.03.2017 instructs the
officers as under.
" Consultation with the noticee before issue of Show Cause
Notice: Board has made per show cause notice consultation by the
Principal Commissioner/Commissioner prior to issue of show
cause notice in case involving demands of duty above Rs.50 Lakhs
(except for preventive/offence related SCN's) mandatory vide
instruction issued form F. No. 1080/09/DLA/MISC/15, dated 21st
December 2015. Such consultation shall be done by the
adjudicating authority with the assessee concerned. This is an
important step towards trade facilitation and promoting voluntary
compliance and to reduce the necessity of issuing show cause
notice."
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8.1 We find that in the following cases it has been held that non
adherence to the instructions issued regarding pre-show cause
consultation vitiate the proceedings and further reason the impugned
show cause notices and order are liable to be set aside.
(i) Hitachi Power Europe GMBH 2019 (27) GSTL 12 (MAD)
(ii) Amadeus India Pvt. Ltd. 2019 (25) GSTL 486 (DEL)
(iii) Gujarat High Court Order in special civil application No.
11308 of 2019; 11208/2019 along with civil application (for
direction) NO.1 of 2020. In the case of L&T Hydrocarbon
Engineering Ltd.
8.2 Hon'ble High Court of Madras held in the case of Hitachi
Power Europe GMBH (supra) held that
2. I have had occasion to deal with a similar issue in W.P. No.
1618 of 2019 in the case of Freight Systems India (Pvt.) Limited
(Order dated 28-2-2019) wherein I have held as follows :
3.
8. The tenor of the Circulars/Instructions makes it clear that the
introduction of the consultation process is as a measure to
avoiding litigation. I refer to the Circulars/Instructions in some
detail, since it is necessary to understand the purpose for which the
process has been introduced.
9. In its Instructions dated 21-12-2015 the Board states as
follows :-
'5. Pre-show cause notice consultation with the Principal
Commissioners and Commissioners is being made mandatory prior
to issue of SCN in the case of demands of duty above Rs. 50 lakhs
(except for preventive/offence related SCN's'.
10. Thereafter, Instruction/Clarification, dated 8-7-2016 referring
to the earlier Circular dated 21-12-2015 provides for a
clarification in the following terms :-
'Please refer to the instruction issued vide F. No.
1080/09/DLA/Misc/15, dated 21st December, 2015, wherein, pre-
show cause notice consultation with the Principal
Commissioner/Commissioner prior to issue of show cause notice in
cases involving demands of duty above Rs. 50 lakhs (except for
preventive/offence related SCN's) has been made mandatory.
2. Certain doubts have been expressed with regard to this. It is
clarified that the pre-show cause notices consultation shall be done
by the adjudicating authority with the assessee concerned. This is a
step towards trade facilitation and promoting voluntary compliance
and also to reduce the necessity of issuing show cause notice.'
11. Instruction/Clarification F. No. 1080/11/DLA/CC
Conference/2016/ 2096/02148, dated 13-10-2016, further
clarifies the consultation process in the following terms :-
'Subject : Pre-show cause notice consultation in cases other than
those detected by Preventive/Anti-Evasion and amount involved
being more than Rs. 50 lakhs - Reg.
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Service Tax Appeal No.75969 of 2021
Please refer to the notification issued vide F. No. 1080/11/DLA/CC
Conference/2016, dated 28th June, 2016, wherein it has been
clarified that the pre-show cause notice consultation with the
assessee concerned shall be done by the adjudicating authority.
2.0 Certain doubts have been further expressed with regard to this.
As per Circular No. 985/09/2014-CX, dated 22-9-2014 Audit
Commissionerate has been made responsible to issue the show
cause notices, wherever necessary, after the audit objections are
confirmed in the MCMs. Such show cause notices are answerable to
and adjudicated by the Executive Commissioner or the Subordinate
officers of the Executive Commissionerate as per the adjudication
limits. In such cases, show cause notice issuing authority and
adjudicating authority are different.
3.0 Hence, it is clarified that in cases where show cause notice
issuing authority/Commissionerate and adjudicating
authority/Commissione-rate are different, pre-show cause notice
consultation with the assessee concerned shall be done by the
Commissioner of show cause notice issuing
authority/commissionerate.
4.0 In cases where the SCN issuing authority is from the
Executive Commissionerate, the pre-SCN consultation shall be done
by the concerned Commissioner.
5.0 All cases of pre-SCN consultation which leads to closure of case
without issuing of SCN, either in part or whole, the file shall be
submitted to the relevant reviewing authority for case of such
nature to keep the reviewing authority informed of the decision.'
12. Master Circular No. 1053/02/2017-CX, dated 10-3-2017, deals
with the subject of consultation process at paragraph 5 in the
following terms :-
'5.0 Consultation with the notice before issue of show cause notice :
Board has made pre-show cause notice consultation by the Principal
Commissioner/Commissioner prior to issue 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 21st December, 2015.
Such consultation shall be done by the adjudicating authority with
the assessee concerned. This is an important step towards trade
facilitation and promoting voluntary compliance and to reduce the
necessity of issuing show cause notice.'
13. A holistic reading of the above extracts makes it clear that the
Customs Department has incorporated the Alternative Dispute
Resolution Mechanism by way of the consultation process to reduce
litigation wherever possible. This is to facilitate resolution of
disputes raised by the Audit in the light of the responses sought and
received from the assessee thus obviating the necessity of even a
show cause notice where the dispute can be resolved in an amicable
fashion.
15. Clarifications dated 8-7-2016 and 10-3-2017 make it expressly
clear that these are steps towards trade facilitation and promoting
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voluntary compliance and also a measure to reduce the necessity of
issuing show cause notices where avoidable. This is thus, a laudable
initiative that has to be diligently pursued for maximum benefit to
both the assessee as well as the Revenue. In the present case, the
objections dated 7-5-2018 are in general terms. The document
furnished to the Department is of the year 2004, whereas enquiry is
between October, 2012 and June, 2017. The business activities and
methods of doing business are likely to have changed over the years.
There is also no reference, as rightly pointed out by Mr. Chopda to
the order of CESTAT, dated 28-3-2018. However, there has been no
opportunity extended to the assessee for a face to face with the
assessing officer, which, in my view, is what a 'consultation' entails.
One could argue as Mr. Chopda has, that no personal hearing has
been sought in this case and in any event, it will be afforded by the
respondents prior to his decision whether to confirm the proposals in
the show cause notice or otherwise.
16. That may be so. However, the import of the
Circular/Instruction has to provide a medium for 'consultation'
between the assessee and the Department. In fact, Master Circular
dated 10-3-2017 uses the phrase 'such consultation shall be done by
the Adjudicating Authority with the assessee concerned'.
17. According to Black's Law Dictionary, the word 'consultation'
is defined as follows :
'1. The act of asking the advice or opinion of someone. 2. A
meeting in which parties consult or confer. 3. International law.
The interactive methods by which States seek to prevent or resolve
disputes.'
18. The obvious inference is that the consultation has to be
between the assessee and the officer and prior to the stage of
issuance of show cause notice. In fine, I conclude that the
consultative process as envisaged by the Department mandates an
opportunity of personal hearing with the assessee, face to face, in
order to make the process an effective one. The petitioner, in this
case, has been denied this opportunity.
11. The discussions as above as well as the observations
above apply on all fours to the present case, except that no
opportunity was sought in that case for a personal hearing
whereas, in the present case, the petitioner has sought an
opportunity of personal hearing that has admittedly not been
granted.
12. In addition, Learned Counsel also points to M.F. (D.R.)
Office Memorandum F. No. 296/51/2016-CX.9, dated 8-3- 2016
wherein the Department monitors and reports upon the
implementations of the Tax Administration Reforms Commission
(TARC) that was set up exclusively 'to review the application of
Tax policies and Tax laws in the context of global best practices
and to recommend measures for reforms required in tax
administration to enhance its effectiveness and efficiency'. The
inclusion of the 'consultative process' was one of the
recommendations for best practices. The recommendation of the
TARC and the status of its implementation, as stated alongside, are
extracted below :
...............
11 Service Tax Appeal No.75969 of 2021
13. While the report appears to proceed on the basis that the Consultative process is being implemented effectively and regularly, the present case would establish otherwise. The impugned SCN has been issued, admittedly, without engaging the petitioner/assessee in the process of pre-SCN consultation.
14. In the light of the aforesaid discussions, that include the discussions and conclusion in W.P. No. 1618 of 2019, extracted above, I set aside impugned show cause notice dated 11-10-2018. The respondents will call upon the petitioner to appear before them with all relevant materials and afford it full opportunity of pre-SCN Consultation, prior to issuance of show cause notice, if at all found necessary.
8.3 Hon'ble High Court of Delhi in the case of Amadeus India Pvt. Ltd. (supra) held that
2. The mandatory character of the Master Circular can be traced to Section 83 of the Finance Act, 1994 which makes Section 37B of the Central Excise Act, 1944 applicable in relation to service tax. In terms Section 37B of the Central Excise Act, 1944 instructions issued by the CBEC would be binding on the officers of the Department.
3. The legal position in this regard is well-settled. Illustratively a reference may be made to the decision in State of Tamil Nadu v. India Cements Ltd. (2011) 13 SCC 247 (SC). Specific to the Master Circular, a reference may be made to the judgment dated 9th February, 2018 passed by the High Court of Judicature at Madras in W.P. (C). 11858/2017 (Tube Investment of India Ltd. v. Union of India) [2018 (16) G.S.T.L. 376 (Mad.)]. In that case, after noticing that para 5.0 of the Master Circular was not adhered to, the High Court set aside the SCN challenged and delegated the parties to stage prior to the issuance of the SCN.
4. In the present case, the Court is satisfied that it was necessary in terms of para 5.0 of the Master Circular for the Respondent to have engaged with the Petitioner in a pre-SCN consultation, particularly, since in the considered view of the Court neither of the exceptions specified in para 5.0 were attracted in the present case.
5. Accordingly, without expressing any view on the merits of the case of either party in relation to the issues raised in the impugned SCN, the Court sets aside the impugned SCN dated 4th September, 2018 and relegates the parties to the stage prior to issuance of impugned SCN. The Respondent will now fix a date on which the authorised representative of the Petitioner would be heard in relation to the issues highlighted in the submissions dated 24th August, 2018 of the Petitioner in response to the communication dated 20th August, 2018 addressed to it by the Respondent. Needless to state that the Petitioner will extend its full cooperation to the Respondent by providing the necessary information.
9. In view of the above, we find that the show cause notice was issued in violation of instruction issued by CBIC as referred above as 12 Service Tax Appeal No.75969 of 2021 observed by the various High Courts the instructions are mandatory in the instant case also the instruction were not complied with. We find that Departmental instructions are binding on the departmental officers. Therefore, any action taken in violation of the instructions is to be treated as nonest. Therefore, we find that the impugned show cause notice and the order do not survive in view of the above discussion.
10. In the result the appeal is allowed with consequential relief, if any, as per law.
(Order pronounced in the open court on 11 August 2022. ) Sd/ (P. K. Choudhary) Member(Judicial) Sd/ (P. Anjani Kumar) Member (Technical) ys