2023 (1) TMI 545 - HC - Service Tax

Invocation of extended period of limitation - sum and substance of the objection raised by the appellants is that for the financial years 2011-2012 to 2014- 2015, show cause notice was issued, which culminated in an order of adjudication and the matter is now pending before the Tribunal at the instance of the appellants and in such circumstances, for the very same allegation for the subsequent period, i.e 2015-2016 to 2017-2018 extended period of limitation could not have been invoked. HELD THAT - Once a preliminary objection is raised on the question of jurisdiction, it is but appropriate for the adjudicating authority to deal with the said issue as first amongst the several issues while passing the order of adjudication. However, the adjudicating authority has adopted a reverse process by deciding the merit first and then dealt with the question of limitation / jurisdiction. This legal issue can be decided only after the affidavit in- opposition is filed by respondents in the writ petition. In the interregnum, if the order of adjudication dated 27th July, 2022 is given effect to, then the appellants would be put to prejudice. Therefore, the order of adjudication dated 27th July, 2022 shall remain stayed till the disposal of the writ petition.

Summary

Issues:
Challenge to order of Principal Commissioner invoking extended period of limitation for service tax payable for specific financial years.

Analysis:
The appellants filed a writ petition challenging the order of the Principal Commissioner of CGST and CX, Kolkata South, invoking the extended period of limitation for service tax payable for the financial years 2015-2016 to 2017-2018. The respondents issued a show cause cum demand notice directing the appellants to explain the tax payable along with interest, penalty, and late fee. The appellants raised a preliminary objection regarding the validity of the notice, citing previous show cause notices for earlier years and relying on legal precedents like the Nizam Sugar Factory case. They argued that the extended period of limitation could not be invoked when all relevant facts were known to the authorities from previous notices.

The appellants also provided a detailed reply on the merits of the case, including references to legal decisions. However, the adjudicating authority did not adequately address the preliminary objection raised by the appellants regarding jurisdiction and limitation. The authority, instead of addressing the jurisdictional issue first, delved into the merits of the case before considering the question of limitation/jurisdiction, which was deemed inappropriate by the Court.

The Court noted that the Tribunal had referred to a relevant legal decision in a similar case, but the impugned order did not clearly reflect this reference. The Court emphasized that if a show cause notice had been issued for an earlier year on the same allegation, the question of suppression for invoking the extended period of limitation for subsequent periods could be considered. The Court directed the respondents to file an affidavit-in-opposition within a specified timeline, and until then, the order of adjudication was stayed to prevent prejudice to the appellants.

In conclusion, the Court allowed the appeal, stayed the order of adjudication, and directed further proceedings to be conducted as per the specified timeline for filing affidavits and replies. No costs were awarded, and the parties were instructed to receive certified copies of the order promptly after completing legal formalities.