9911796707
TMI Blog2016 (11) TMI 707X X X X Extracts X X X X X X X X Extracts X X X X ..... le in the taxable value of service. Delay in filing petition - Held that: - The respondent is bound by the Circular issued by CBEC. In the impugned order, there is no finding recorded by the respondent as to why the Circular was not adhered to and why the order was not passed within atleast one month after the conclusion of the personal hearing. It may be true that the delay by itself cannot be a ground to set aside the order, but if the assessee is put to prejudice on account of the delay, then it is a good ground to interfere with the order passed by the lower authority. However, in this case, this Court is not inclined to test the correctness of the order on the ground of delay, since this Court is satisfied that the impugned order is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... one year and one month, the respondent issued the impugned order, confirming the demand of service tax made in the show cause notices. This order is questioned in this writ petition. 2. Though the petitioner has an effective alternative remedy against the impugned order by way of an appeal to the CESTAT, the petitioner has challenged the impugned order by way of this writ petition primarily on two grounds. Firstly, by contending that the respondent has relied on the decision of the Tribunal in the case of Suzlon Infrastructure vs. Commissioner of Central Excise, Pune, reported in (2012) 27 STR 243, which has been overruled by the High Court of Bombay in the case of Synefra Engineering and Construction Limited vs. Commissioner of Central ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Infrastructure (supra) has been set aside by the High Court of Bombay, the matter has been remanded to the Department for fresh consideration. With regard to delay in passing the order, the learned counsel placed reliance on a decision of this Court in the case of Academy of Maritime Education and Training Trust vs. the Commissioner of Service Tax, Chennai in W.P.No.13615 of 2014 dated 3.7.2014 and submitted that the court held that the delay by itself cannot be a ground to set aside the order and the Court had relied upon a decision of the Hon'ble Supreme Court in Telestar Travels Private Limited vs. Special Director of Enforcement, reported in 2013(289) ELT 3 (SC). 5. Heard Mr.Joseph Prabakar, learned counsel for the petitioner and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unal in Suzlon Infrastructure has been effaced by the order of the High Court. Therefore, the decision in the case of Suzlon Infrastructure, based on which the impugned order was passed, was no longer available for the respondent to rely upon, as the Bombay High Court, as early as on 5.9.2012 has set aside the judgment. Thus, to rely upon an order of the Tribunal, which has been set aside much earlier, undoubtedly it is an error apparent on the face of the order passed by the respondent. This is sufficient to hold that the impugned order is unsustainable. 8. The second aspect is with regard to delay. The respondent is bound by the Circular issued by CBEC. In the impugned order, there is no finding recorded by the respondent as to why the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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