TMI Blog2023 (3) TMI 1014X X X X Extracts X X X X X X X X Extracts X X X X ..... easonable period. In the facts of the present case, even if details of Annexure R-1 is to be taken into account, it is not in dispute that the petitioner was not served after 31.08.2017. So the respondents were required to finalise the show cause notice within a period of one year as per clause (b) of sub Section 4-B of Section 73 of Act 1994. The writ petition is allowed and show cause notice dated 17.08.2015 is quashed on the ground of limitation. - CWP-3873-2021 - - - Dated:- 9-2-2023 - HON BLE MS. JUSTICE RITU BAHRI AND HON BLE MRS. JUSTICE MANISHA BATRA Present:- For the petitioner : Mr. R.K. Phillips, Advocate. For the respondents : Mr. Sourabh Goel, Sr. Standing counsel. Ritu Bahri, J. The petitioner has approached this Court by filing the present writ petition for issuance of writ in the nature of certiorari for quashing show cause notice dated 17.08.2015 with the consequential relief of refund of entire amount of tax so deposited during investigation of the case i.e Rs.1,26,46,061/- (including Rs.54,75,724/-) (Annexure P-1) and notices of personal hearing dated 21.08.2020 (P-2) and 21.09.2020 (P-3) issued by respondent No. 3 and 08. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... termine 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 proviso to sub-section (4A)]. In the present case, the petitioner was issued shows cause notice on 17.08.2015 and thereafter, after a gap of 05 years, he was called for personal hearing, vide notices of personal hearing dated 21.08.2020 (P-2) and 21.09.2020 (P-3) and 08.12.2020 (P-5). The petitioner gave reply to the notice for personal hearing dated 21.09.2020, vide letter dated 05.10.2020 (P-4). Learned counsel is relying upon judgment of Hon ble the Supreme Court of India in a case of State of Punjab vs. Bhatinda District Co-op Milk P. Union Ltd, 2007 (217) E.L.T325 (S.C), judgment of Hon ble Delhi High Court in a case of Sunder System Pvt. Ltd vs. Union of India, 2020 (33) G.S.T.L 621 (Del.), judgment of Hon ble Gujarat High Court in a case of Serve Pharmaceuticals vs. Union of India, 2019 (366) E.L.T 49 (Guj), jud ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 08.12.2020 14.12.2020 17 15.12.2020 24.12.2020 Learned counsel for the respondent has thus submitted that the petitioner was trying to mislead the department, as the petitioner vide its letter dated 25.08.2015 had acknowledged the fact that show cause notice dated 17.08.2015 has been issued to him and had requested for release of seized documents. In the reply, it has been further stated that as regards the petitioner letter dated 07.10.2016 to Supdt on 17.10.2016 regarding change of address, it has been sated that Supdt( Anti Evasion) is neither the Investigating Agency (DGCEI) nor the Adjudicating Authority in the instant case. The petitioner intentionally did not inform the new address to the Investigating Agency or Adjudicating Autnority to delay the decision in the matter on his own. The petitioner had no intention to settle the dispute on merits and thus, he did not file reply. Learned counsel for the respondent while referred to clause (b) of Section 4B of Section 73 of Act 1994 submits that the Finance Act does not provide for mandatory ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 22. The question as to what would be the reasonable period did not fall for consideration therein. The binding precedent of this Court, some of which had been referred to us hereto before, had not been considered. The counsel appearing for the parties were remiss in bringing the same to the notice of this Court. Furthermore, from a perusal of the impugned notice dated 4-9- 2006, it is apparent that the Revisional Authority did not assign any reason as to why such a notice was being issued after a period of 5 years. Sub Section 4B of Section 73 of Act 1994 came up for consideration before Hon ble Delhi High Court in Sunder System Pvt. Ltd s case (supra) wherein in para No. 9 to 11, it has been observed as under:- 9. A Coordinate Bench of this Court in the case of National Building Construction Co. Ltd. v. Union of India, 2019 (20) G.S.T.L 515 (Del.) has held as under :- 20......Sub-section (4B) to Section 73 of the Fin Act fixes the time or limitation period within which the Central Excise Officer has to adjudicate and decide the show cause notice. The time period fixed under Clause A or B is six months and one year, respectively. Limitation, period for passin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rth any justification or show any explanation for delay in adjudicating the show cause notice even after it had retrieved the case from the Call Book on 28- 9-2009 till the passing of the order impugned in this petition. As such, it has to be adjudicated within reasonable time and in absence of any proper explanation thereof, it is unlawful and arbitrary as held by this Court in the case of Siddhi Vinayak Syntex Pvt. Ltd. (supra) and other decisions subsequent thereto. Hence, the show cause notice and the Order-in-Original passed pursuant thereto cannot be sustained. 6.2 So far as issuance of notice for personal hearing as claimed in the affidavit-in-reply by respondent No. 2, though disputed by the petitioner having served by prescribed procedure is concerned, it is desirable that it is not probed further as the order impugned in this petition pursuant to the show cause notice is required to be quashed and set aside on the ground of delay in adjudication proceedings. Since the impugned order is quashed and set aside on the ground of delay in adjudication proceedings, the argument of alternative remedy raised by the respondent is rejected as the proceedings itself is vitiated ..... X X X X Extracts X X X X X X X X Extracts X X X X
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