The High Court of Calcutta in the matter of Simplex Infrastructures Ltd. Versus Commissioner of Service Tax, Kolkata-2016 (4) TMI 548 – CALCUTTA HIGH COURT while following the ratio in Avery India Ltd.-vs.-Union of India (2011) (268 ELT 64) read with Hon’ble Supreme Court in the case of Dankan Industries Ltd.-vs.-Commissioner of Central Excise, New Delhi (2006) (201 ELT 517) held that
Two show cause notices could not have been issued in relation to the same period. The impugned show cause notice, therefore, cannot be sustained.
It further held that
it is trite law that an authority cannot confer on itself jurisdiction to do a particular thing by wrongly assuming the existence of a certain set of facts, existence whereof is a sine qua non for exercise of jurisdiction by such authority. An authority cannot assume jurisdiction to do a particular thing by erroneously deciding a point of fact or law. Here, since the petitioner has challenged the jurisdiction of the authority to issue the impugned show cause notice, the Writ Petition cannot be rejected at the threshold. Whether or not the petitioner will ultimately succeed on merits is a different question altogether. However, it cannot be said that the Writ Petition is not maintainable at all and should not be entertained for adjudication.