TMI Blog2023 (10) TMI 506X X X X Extracts X X X X X X X X Extracts X X X X ..... elay in communicating the Impugned Order beyond the stipulated period of one month after closure of the personal hearing. Consequently, the Impugned Order is in clear contravention of the said circulars of the Revenue Department. So far as the quantification of delay in communication of the Impugned Order is concerned, there are two scenarios. One is considering the alleged date of last personal hearing as provided in the Impugned Order. Other is considering the valid and lawful date of last personal hearing. As per the alleged date of last personal hearing i.e., 08.03.2022 as provided in the Impugned Order is concerned, the Impugned Order was communicated to the security guard of the building, where the Petitioner has its office, on 27.05.2022 i.e., after 2.5 months against the required period of 1 month. In the present case since there was no prior notice served to the Petitioner for the alleged personal hearings on 20.01.2022 and 08.03.2022, therefore both the alleged personal hearings are in contravention to Clause 14.3 of the said Circular. Thus, both the alleged personal hearings cannot be considered to be valid personal hearings. The last personal hearing, as provided ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e rules under Service Tax Rules, 1994. (ii) For issuance of an appropriate writ(s)/order(s)/ direction(s) including a writ of certiorari for setting aside the Demand-Cum-Notice to Show Cause, dated 23.10.2019 and bearing reference no. F. No. 34/DGCEI/JRU/ ST/SCM/Gr.B/2018, issued by Respondent No. 3 (Annexure-1) since the said Demand cum Notice to Show Cause is illegal, barred by period of limitation, arbitrary, unreasonable and against the provisions of the Finance Act, 1994 read with the prescribed rules under Service Tax Rules, 1994. (iii) For issuance of any other appropriate Writ(s), order(s), and/ or direction(s), as Your Lordships may deem fit and proper in the facts and circumstances of this case and in the interest of justice. 2. The brief facts as disclosed in the instant writ application is that the Petitioner is primarily engaged in the business of renting of immovable property and was registered under the provisions of the Finance Act, 1994 having registration no. AADFLO737ASD001 and was regularly filing its service tax returns and had duly paid its service tax liabilities. Respondent No. 2 conducted a search on 23.10.2018 at the office premises of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dicated upon by the Assessing Authority. Relying upon the aforesaid submissions, Mr. Lamba contended that the impugned order is fit to be quashed and set aside. 5. Mr. P.A.S.Pati, learned counsel for the respondent No. 4 submits that the adjudication order issued against SCN bearing ref. no. F. No. 34/ DGCEI/ JRU/ ST/ SCW/Gr. B/2018/3005 is valid and sustainable as this order is issued against the same SCN which were provided to the petitioner. The petitioner was fully aware of this SCN dated 23.10.2019 issued to them, as they have always replied to the letters issued for fixing personal hearing date and also submitted defense reply against the same said SCN. Mr. Pati further contended that the petitioner has referred Section 73(4B) of the Finance Act, 1994, which stipulates that: (4B) The Central Excise Officer shall determine the amount of service tax due under sub-section (2)- (a) within six months from the date of notice where it is possible to do so, in respect of cases falling under sub-section (1); (b) within one year from the date of notice, where it is possible to do so, in respect of cases falling under the proviso to sub-section (1) or the provis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... earing fixed on 23.12.2021. He reiterated that the last date of personal hearing provided to the Petitioner was 23.12.2021 but the subsequent dates of personal hearing which have been alleged by the Respondent in the Impugned Order is only to cover up their delay and latches and specifically their miserable failure to comply with Clause 4.3 of the instruction, dated 18.11.2021, issued by the Central Board of Indirect Taxes and Customs read with the Master Circular No. 1053/ 02/ 2017 - CX dated 10.03.2017. 8. Having heard learned counsel for the parties and after going through the averments made in the respective affidavits and the documents annexed therein, it transpires that the main issues raised by the petitioner are as follows: - (a) Show cause Notice which has been adjudicated was not served to the petitioner and seems to be not in existence. (b) The impugned order has been passed in violation of the Circulars issued by the Central Board of Indirect Taxes and Customs. (c) Impugned order is without jurisdiction as the same has been passed beyond the normal period of limitation and in the absence of the jurisdictional facts for invoking the extended period of li ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ade to the correspondence resting with the Ministry of Finance (Department of Revenue) Letter No. 4/22/61-IT(AT) dated 25-11-1961, wherein it is stated that the Department's view has all along been that an individual is (sic not) not ordinarily resident unless he satisfies both the conditions in Section 4-B(a) i.e. (i) he must have been a resident in nine out of ten preceding years; and (ii) he must have been in India for more than two years in the preceding seven years. In the present case, the circular issued by the Board in which the opinion of the Central Government, the Ministry of Finance (Department of Revenue) Letter No. 4/22/61-IT(AT) dated 25-11-1961 has been noted, the interpretation similar to the one put by the various High Courts on Section 4-B has been accepted to be the correct position. Further it is also a well-established principle of law that if law prescribes a manner in which a power has to be exercised, then such power can be exercised only in such manner. This has been recently reiterated by the Hon ble Apex Court in its judgment passed in the case of Dharani Sugars Chemicals Limited v. Union of India reported in (2019) 5 SCC 480, Para 55. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anner set out in Section 35-AA. 11. In the instant case, admittedly, the Respondent Department has violated Clauses 14.10 of the Master Circular No. 1053/ 02/2017-CX dated 10.03.2017, and Clause 4.3 of the Instructions dated 18.11.2021 issued by the Central Board of Indirect Taxes and Customs. Clause 14.10 of the said Master Circular, issued by the Central Board of Indirect Taxes and Customs, is reproduced herein below for ready reference: 14.10 Issue and Communication of Order: In all cases where personal hearing has been concluded, it is necessary to communicate the decision as expeditiously as possible but not later than one month in any case, barring in exceptional circumstances to be recorded in the file. The order is required to be communicated to the assessee in terms of provisions of Section 37C of the CEA 1944. The re-emphasizing the binding nature and importance of Clause 14.10 of the Master Circular, the Central Board of Indirect Taxes and Customs has again issued an Instruction dated 18.11.2021. Clause 4.3 of the said Instructions provides as under: 4.3 On the issue of delay in issuance of adjudication order within stipulated period of one month afte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... required period of 1 month. 13. At this stage it is also pertinent to clarify the submission of the Petitioner that the alleged date of last personal hearing in the Impugned Order, which is 08.03.2022, and also the alleged date of personal hearing on 20.01.2022, cannot be considered to be valid personal hearing since no prior notice for such personal hearings were served by the Respondents to the Petitioner. In this regard, it is relevant to refer the Master Circular again. Clause 14.3 of the said Master Circular, issued by the Central Board of Indirect Taxes and Customs, provides that separate notice for each personal hearing shall be made/served to the noticee. Clause 14.3 is reproduced herein below for ready reference: 14.3 Personal hearing: After having given a fair opportunity to the noticee for replying to the show cause notice, the adjudicating authority may proceed to fix a date and time for personal hearing in the case and request the assessee to appear before him for a personal hearing by himself or through an authorised representative. At least three opportunities of personal hearing should be given with sufficient interval of time so that the noticee may avai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re prejudice to the Petitioner. Learned counsel also relied upon the Circular issued by the Central Board of Excise and Custom dated 10 March 2017 laying down guidelines for adjudicating authorities while adjudicating the matters, more particularly Clause 14.10 thereto. It is contended that in view of this the Writ Petition be entertained without relegating the Petitioner to the appellate remedy. .. 17. The Division Bench in the case of EMCO Ltd. has emphasized that when the proceedings are disposed of expeditiously by the authorities, it ensures there is an application of mind and litigants are satisfied that their submissions have been considered. A Circular by the Central Board of Excise and Customs dated 10 March 2017 also directs a decision be taken expeditiously where the hearing has been concluded, and the decision be communicated expeditiously. 18. Considering these peculiar facts, we are of the opinion that the Writ Petition can be entertained to set aside the order. The Commissioner will have to take a fresh decision. 19. In the circumstances, the impugned order dated 12 July 2019 passed by the Respondent No. 2 is quashed and set aside. The p ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
