9911796707
TMI Blog2025 (4) TMI 956X X X X Extracts X X X X X X X X Extracts X X X X ..... Commissioner of Central Excise & Service Tax, Guwahati vide Order-in-Original No. 13/Addl.Commr./BT/ST/GHY/2016-17 dated 06.01.2017 upholding the service tax demand of Rs. 11,26,455/-,along with interest. A penalty of Rs. 11,26,455/- was imposed on the appellant under Section 78 of the Finance Act, 1994 along with a penalty of Rs.10,000/- under Section 77(2) of the Act. An amount of Rs. 1,69,336/-, which was deposited by the appellant prior to issuance of the Show Cause Notice, was appropriated by the said order. The balance demand of Rs. 30,02,387/- was dropped vide the said order. 1.2. On appeal, the Ld. Commissioner (Appeals), Guwahati, vide his Order-in-Appeal dated 31.08.2017, recalculated the service tax liability by taking into account the benefit of threshold exemption up to Rs. 10,00,000/- for the Financial years 2010-11 and 2011-12 and upheld the service tax liability amounting to Rs. 9,66,874/- (inclusive of cesses), along with interest and imposed a penalty of Rs.9,66,874/-under Section78 of Finance Act, 1994. A penalty of Rs. 10,000/- was also imposed under Section 77(2) ibid. Rs. 1,69,336/-, already paid by the appellant, and Rs. 84,484/-, paid by the appellant as d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wned and controlled by the Ministry of Power, Government of India. Further, it is pointed out in this respect that M/s. Power Grid Corporation of India supplies power for industry, street lighting etc. The appellant has referred to Section 243W of the Constitution, read with the Twelfth Schedule, which specifies that one of the functions of a municipality is to provide 'Public Amenities', like street lighting, etc. Hence, it is the appellant's contention that M/s. Power Grid Corporation of India falls within the ambit of 'Governmental Authority'. 2.4. Therefore, the appellant submits that the entire amount of Rs. 9,66,874/- as upheld by the impugned order is liable to be set aside since the nature of services provided by them are squarely covered by the Notification No. 25/2012-ST dated 20.06.2012. 2.4. It is the further submission of the appellant that the Show Cause Notice in this case was issued on 15.10.2015 and the adjudication Order was passed on 06.01.2017i.e. almost after 01 year 2 months from issue of the notice. He states that the adjudication process has been done or completed based on whatever documents or records which were already available with the Department and f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e than five years, whereas in the present appeal, the Order has been passed within a short period after issuing show cause notice; he submits that in the present case, the Show Cause Notice was issued on 15.10.2015 and the adjudication Order was passed on 06.01.2017, i.e. only two months more than the prescribed time limit of one year. He thus contends that this shows that inordinate delay has not occurred and accordingly the said decision cannot be made applicable to this appeal. 4. Heard both sides and perused the appeal records. 5. Since the appellant has questioned the legality of the Order in Original, this issue is required to be taken up first, before going into the aspects of merits or time-bar. 5.1. We find that as per the appellant, the ratio laid down in the case of M/s. Kopertek Metals Pvt. Ltd. & ors. v. Commissioner of CGST (West), New Delhi [Final Order No. 59511-59720 of 2024 dated 25.11.2024 in Excise Appeal No. 52178 of 2022 & ors. - CESTAT, New Delhi]., is required to be applied to the present case. We find it necessary to go through the relevant portions of the Final Order passed in the case of M/s. Kopertek Metals Pvt. Ltd. (supra), which are extracted below ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion of such circumstances. The Delhi High Court specifically observed that the phrase "where it is possible to do so" would only mean wherever it is not practicable/possible to do a certain act, the period can be extended but the same cannot provide endless time limit to the department without any plausible justification. 25. It transpires from the aforesaid decisions that: (i) The phrases " as far as possible" and "as far as practicable" are more or less inter-changeable along with the word "feasible"; (ii) Only when circumstances or insurmountable exigencies make it impracticable or not possible for the adjudication to take place within the stipulated period that the authorities may deviate from the time limit prescribed under the Statute; (iii) The mandate of the legislature that the show cause notice should be adjudicated within six months or one year, as the case may be, only provides flexibility for extension of the period when it is not practicable or possible to adjudicate it within the said time limit. The time limit period cannot be extended endlessly without any plausible justification; (iv) The indifference of the Adjudicating Authority to complete the adjudi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ccasion, while the aforesaid expression did allow a degree of flexibility, it would have to be understood as being concerned with situations where the proper officer may have found it impracticable or impossible to conclude proceedings. Swatch Group had explained that expression to be applicable only where the proper officer were faced with "insurmountable exigencies" and further recourse being rendered "impracticable or not possible". It thus held that the leeway provided by the statute when it employed the phrase "where it is possible to do so", could not be equated with lethargy or an abject failure to act despite there being no insurmountable factor operating as a fetter upon the power of the proper officer to proceed further with adjudication. ............... 85. The position which thus emerges from the aforesaid discussion and a review of the legal precedents is that the respondents are bound and obliged in law to endeavour to conclude adjudication with due expedition. Matters which have the potential of casting financial liabilities or penal consequences cannot be kept pending for years and decades together. A statute enabling an authority to conclude proceedings within ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... - 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)]." 15. From a plain reading of the provisions of Section 73(4B) and more particularly, in the context of the legislative intent in introducing sub-section (4B), we cannot accept such contention as urged by the respondent that there is no mandate on the concerned officer of the department to decide the show cause notices expeditiously, and/or the timelines which are set out in sub-section (4B) would be required to be held to be merely directory, as the provision would make an allowance for a belated adjudication of the show cause notice.In our opinion, such contention as urged on behalf of the respondent would militate against the plain reading of sub-section (4B) when it pointedly provides that the Central Excise Officer "shall" determine the amount of service tax due under section 73(2), which in clause (a) thereof provides for the timelines, namely, within six months from the date of notice where it is possible to do so, in respect of cases falling under section 73(1); and secondly, when ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der any fiscal legislation and concerning recovery of revenue would have a very serious concern and bearing on the public revenue. Hence, there cannot be any laxity much less any lethargic approach on behalf of the officers is delaying adjudication of such notices. The legislative provisions which intend to bring about an expeditious and effective adjudication of a show cause notice cannot be defeated by the officers sitting tight on the show cause notice and/or not expeditiously taking them to the logical conclusion. Such is the view repeatedly taken in series of judgments of this Court, to which a detailed reference has been made by us in our decision in CoventaryPvt. Ltd. (supra). These are decisions in ATA Freight Line (I) Pvt. Ltd. v. Union of India & Ors. Writ Petition No. 3671 of 2022 against which Special Leave Petition (Civil) Diary No. 828 of 2023 filed by the Union of India came to be dismissed by the Supreme Court; in CMA-CGM Agencies (India) Pvt. Ltd. v. Union of India & Ors. Writ Petition No. 1313 of 2021; in Shreenathji Logistics v. Union of India & Ors. Writ Petition No. 540 of 2020; in Sushitex Exports (India) Ltd. & Ors. v. Union of India &Anr. 2022 SCC Online Bom ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of excise under sub-section (10) - (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 sub-section (4) or sub-section (5). Customs Act 1962 : Section 28 (9) :The proper officer shall determine the amount of duty or interest under sub-section (8),- (a) within six months from the date of notice, where it is possible to do so in respect of cases falling under clause (a) of 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 sub-section (4). The Finance Act, 1994 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 subsection (2) (a) within six months from the date of notice where it is possible to do so, inrespect of cases whose limitation is specified as eighteen months in sub- section (1); (b) within one year from the date of notice, where it is possible to do so, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... after 01 year 2 months from issue of the notice. As per amended Section 73(4B) of the Finance Act, 1994 w.e.f. 06.08.2014, the time limit for issuance of Order-in-Original is a maximum of one year, even in suppression related cases.From the said Order-in-Original, we observe that there is nothing to indicate that the appellant has in any way delayed the proceedings necessitating the ld. adjudicating authority to delay the passing of the order at his end.As the Order-in-Original in this case has been issued beyond the one-year time limit fixed for adjudication, we hold that the whole adjudication proceedings in terms of the instant Order-in-Original have become a nullity and the Order-in-Original is to be considered as non-est in law. Consequently, we hold that the impugned order passed by the Ld. Commissioner (Appeals) is liable to be set aside on the ground of delay in adjudication of the notice. 7. In view of the above discussions and by relying on the ratio of the decisions cited supra, we set aside the demands confirmed in the impugned order on account of delayed passing of the Order-in-Original. 7.1. Since the demand of Service Tax against the appellant does not survive, the ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
