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TMI Blog2024 (12) TMI 1145X X X X Extracts X X X X X X X X Extracts X X X X ..... ause Notice No. 22/2015 dated 21.04.2015 issued by the Respondent No. 2; B) issue a Writ of certiorari/ mandamus or any other appropriate Writ/ order/ direction against the Respondents by quashing of the impugned hearing Notice dated 18.09.2024 (at Annexure P-2) issued by the Respondent No. 5 to reinitiating adjudication proceeding after gap of almost 9 years and also quash the impugned Show Cause Notice No. 22/2015 dated 21.04.2015 (signed on 22.04.2015) issued by the Respondent No. 2 (at Annexure P-1) by declaring that it is without any jurisdiction, illegal and bad under the law;..." BACKGROUND FACTS 2. The case set out by the petitioner is that the Revenue had issued a Show Cause Notice, bearing no. 22 of 2015, dated 21.04.2015 [hereafter 'the impugned show cause notice'] demanding a total service tax of Rs. 6,90,07,865/- (including Education Cess and Secondary & Higher Education Cess) for the period 2012-13 and 2013-14, under proviso to Section 73 (1) of the Finance Act, 1994 [hereafter 'the Finance Act'] along with interest and penalties. 3. The petitioner, refuting the allegations made in the impugned show cause notice, had filed his reply dated 26.05.2015 which was dul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o. 73-74/GB/2012 on 26.04.2012, and dropped the entire demand of service tax in respect of the said notices. 7. The said decision was assailed by the Revenue by way of an appeal i.e. Service Tax Appeal No. 2258 of 2012 before the learned Customs, Excise, and Service Tax Appellate Tribunal [hereafter 'the learned CESTAT']. Eventually, the said appeal was dismissed by the learned CESTAT by way of judgment dated 15.09.2022, which has not been challenged by the Revenue. 8. In the meanwhile, on 21.04.2015, the impugned show cause notice was issued to the petitioner, raising demand of service tax in respect of 'Erection, Commissioning, or Installation services' provided by the petitioner to the DMRC for the period 2012-13 and 2013-14. However, since a similar matter was under consideration before the learned CESTAT (as noted in preceding paragraph), the adjudication proceedings qua the impugned show cause notice were deferred, in compliance with Circular No. 162/73/95-CX dated 14.12.1995 issued by the CBEC. It is contended that the deferment was communicated to the petitioner by the Assistant Commissioner (Adj.), Service Tax, Audit-I, Delhi, by way of letter dated 29.01.2016. 9. There ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ithin the specified time". The said instructions were again repeated in Instruction F. No. 280/45/2015-CX.8A, dated 17.09.2015. It is stated that there is no justification for issuance of such notice after a period of nine years. 13. The learned counsel for the petitioner further contended that the impugned hearing notice has been issued by the Office of Commissioner, Central Goods & Services Tax (CGST), Delhi, and there are no reasons assigned as to how the said officer has assumed the jurisdiction under the Finance Act, since the GST officers are appointed under the CGST Act, 2017 and they are only vested with the jurisdiction pertaining to the said Act. Therefore, the respondent no. 5, who is an officer under the CGST Act, had no jurisdiction to proceed in the matter which was covered under the Finance Act. 14. On these grounds, the petitioner seeks quashing of the impugned hearing notice and the impugned show cause notice. Submissions on Behalf of the Revenue 15. The learned counsel appearing for the Revenue has argued that the impugned hearing notice dated 18.09.2024 does not suffer from any infirmity, since the proceedings pertaining to the present case had been kept in a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... notice dated 18.09.2024 has been issued after a period of nine years. 20. A perusal of the record reveals the following undisputed facts: (i) The impugned show cause notice was issued on 21.04.2015 (ii) In response to the same, the petitioner submitted his reply on 26.05.2015. (iii) The notice of hearing dated 30.09.2015 was issued to the petitioner. (iv) The said hearing took place, and was concluded, on 19.10.2015. (v) In the past, two show cause notices were issued by the Revenue to the petitioner, on similar grounds, for the period 2005-06 to 2009-10, and for the period 2010-11; however, the proceedings were dropped vide Order-in-Original dated 26.04.2012. 21. The Order-in-Original dated 26.04.2012 was assailed by the Revenue by way of an appeal, which was dismissed by the learned CESTAT vide judgment dated 15.09.2022. The relevant observations of the learned CESTAT are extracted hereunder: "...20. Though we are not required to examine the fitment within the claimed enumeration of 'works contract service', we find that the respondent was involved in the shifting of the existing water pipelines belonging to Delhi Jal Board which, by implication, ultimately is rend ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Further, there is a merit in the contention of the learned counsel for the petitioner that the Revenue / respondents were in knowledge about the proceedings being dropped against the petitioner in respect of the earlier two show cause notices, and also the fact that the appeal of the Revenue had already been dismissed by the learned CESTAT vide judgment dated 15.09.2022, i.e. about two years prior to issuance of impugned hearing notice dated 18.09.2024. 25. At this stage, it will be useful to refer to Section 73 (4B) (b) of the Finance Act, which is set out below: "Section 73. Recovery of service tax not levied or paid or short-levied or short-paid or erroneously refunded- *** (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 in 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)." 26. The learned counsel for the Revenue argued that the language used in the above-noted pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... petitioner within a period of one year at least from the conclusion of arguments on 03rd February, 2015, if not earlier. 13. Since that has not been done, the present writ petition is liable to be allowed on the short ground of limitation alone. 14. Consequently, the present writ petition is allowed and show-cause notice dated 25th November, 2011 is quashed. The respondents are directed to refund the aforesaid amount to the petitioner within four weeks." (Emphasis added) 27. Similarly, the High Court of Gujarat in Siddhi Vinayak Syntex Pvt. Ltd. v. Union of India (supra), in respect of Section 11A of Central Excise Act, 1944, had observed as under: "When the legislature has used the expression "where it is possible to do so", it means that if in the ordinary course it is possible to determine the amount of duty within the specified time frame, it should be so done. The legislature has wisely not prescribed a time limit and has specified such time limit where it is possible to do so, for the reason that the adjudicating authority for several reasons may not be in a position to decide the matter within the specified time frame, namely, a large number of witnesses may have to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ne accepts that the time period of six months/one year as mentioned in Section 73 (4B) of the Finance Act is only suggestive, it would be unreasonable to hold that the same can be extended till a period of nine years in the given facts and circumstances of the case. The Revenue has failed to explain as to how such a delay in re-initiating the proceedings in respect of the impugned show cause notice issued in the year 2015 is justified, when under similar facts and circumstances, the proceedings initiated against the petitioner pursuant to two show causes notices dated 15.10.2010 and 14.10.2011 itself were dropped in the year 2012 vide Order-in-Original dated 26.04.2012 and even the appeal against the same, preferred by the Revenue, had been dismissed by the learned CESTAT in the year 2022 - about two years prior to the issuance of impugned hearing notice. Further, it is the case of Revenue itself that the proceedings in the present case had been kept in abeyance due to pendency of the appeal before the learned CESTAT. The decision of the learned CESTAT, concededly, has been accepted and not challenged by the Revenue. 31. The Revenue's contention that it was justified in keeping th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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