2023 (10) TMI 10 - HC - Service Tax

Violation of principle of natural justice - non-submission of reply to the SCN - Levy of service tax in terms of Sl. No.13 of notification No. 25/2012-ST dated 20.06.2012 - HELD THAT - It transpires that no reply to the SCN was ever submitted by the petitioner. Even the date of personal hearing was fixed four times i.e., on 27.10.2022, 25.11.2022, 07.12.2022 and 04.01.2023, however, the petitioner did not respond to the same. The petitioner referred Annexure-2, 2/1 and 2/2 that he has replied to the notice as such the same should have been considered as reply to SCN but after perusing the said Annexure it appears that the said reply was given at the stage of enquiry. From bare perusal it appears that the same was sent to the Superintendent, Range-1, Div-II, Bokaro; however, those were pre SCN queries made by the Range Officer but, admittedly; the petitioner did not reply to the SCN. It is further evident that the Assessee was given ample opportunity to appear before the adjudicating authority but he failed to do so. The letters of personal hearing were issued to him on the address M/s Rajeev Kumar, Lukiya Petarwar, Bokaro Steel City, 827001 provided by petitioner-assessee in their GST registration but the letters were returned undelivered - the contention of the Assessee that principle of natural justice has not been complied is misplaced and misconceived and without any basis. As a matter of fact, in para-9 and 10 of the impugned Order-in-Original, the adjudicating authority has clearly stated giving details of opportunity provided to the Assessee. As such the contention of non-fulfillment of natural justice is not sustainable in the background of this case. Thus, no error has been committed by the adjudicating authority in passing the impugned Order-in-Original, inasmuch as, enough opportunities were provided to the petitioner by issuing SCN and also fixing date of personal hearing for four times; but the petitioner did not respond to either of them. Application dismissed.

Summary

Issues involved:
The issues involved in this case are the issuance of a writ for setting aside an Order-in-Original, quashing a demand-cum-notice to show cause, and seeking a direction for a fresh order based on submissions made by the petitioner.

Writ for setting aside Order-in-Original:
The petitioner, engaged in civil contract work, contested the imposition of service tax for the financial year 2016-17, citing exemption under notification No. 25/2012-ST. Allegations of non-registration and non-payment of service tax led to a demand-cum-show cause notice. The petitioner submitted replies and documents via email, but failed to attend a subsequent personal hearing. The adjudicating authority passed the Order-in-Original without considering the petitioner's submissions, leading to the writ application.

Quashing demand-cum-notice to show cause:
The demand-cum-notice to show cause issued by the respondent was challenged by the petitioner on grounds of non-compliance with principles of natural justice. The petitioner argued that the failure to consider their submissions and documents submitted earlier warranted setting aside the demand-cum-notice.

Direction for a fresh order:
The petitioner sought a direction for the adjudicating authority to pass a fresh order, taking into account the submissions and documents provided by the petitioner in response to the allegations. The petitioner contended that the failure to consider their earlier submissions led to a violation of natural justice principles.

Judgment Summary:
The court noted that the petitioner failed to respond to the show cause notice or attend multiple personal hearing dates despite opportunities provided. The court found that the petitioner's earlier submissions were pre-SCN queries and not a response to the show cause notice. The court determined that the principle of natural justice was not violated as the petitioner did not fulfill the requirements of responding to the SCN or attending the hearings. The court held that the writ application was not maintainable due to the availability of an alternative remedy under the Act. Consequently, the court dismissed the application and closed any pending interlocutory applications.