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TMI Blog2020 (2) TMI 813X X X X Extracts X X X X X X X X Extracts X X X X ..... ON NO. 3625 OF 2019 - - - Dated:- 29-1-2020 - NITIN JAMDAR M.S. KARNIK, JJ. Mr. Sriram Sridharan for Petitioner. Mr. J.B. Mishra for Respondent No.2. P.C.:- Heard learned counsel for the parties. 2. The Petitioner has challenged the order passed by the Commissioner of CGST and Central Excise, Thane-Respondent No.2 dated 12 July 2019. 3. The Petitioner provides dredging services. A show-cause notice came to be issued to the Petitioner on 19 March 2013. The demand was made for three periods. First was regarding Management Maintenance and Repair Service under the Reverse Charge Mechanism for the period April 2008 to March 2012. For a period April 2009 to March 2012 for Supply of Tangible Goods for Use Service under Reverse Charge Mechanism. For a period 7 May 2010 to 16 November 2010 for Supply of Tangible Goods for Use Service and for Dredging Service for a period 26 November 2009 to 23 February 2010. 4. By order dated 30 September 2015, demand was confirmed against ex-parte. The Petitioner filed a Writ Petition in this Court. By directing the Petitioner to deposit an amount of ₹ 25,00,000/-, this Court quashed and set aside the order and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ustice denied. Justice withheld is even worse than that. The Apex Court in the case of Madhav Hayawadanrao Hoskot v. State of Maharashtra, 1978 (3) SCC 544 had an occasion to take serious note of the prejudice normally caused to the litigant due to delayed delivery or pronouncement of the judgment for the reasons which are not attributable either to the litigant or to the State or to the legal profession. 13. In R.C. Shama v. Union of India, 1976 (3) SCC 474, the Apex Court after noticing absence of the provision in the Code of Civil Procedure in the matter of time frame in delivery of judgment, observed as under : Nevertheless, we think that unreasonable delay between hearing of arguments and delivery of a judgment, unless explained by exceptional or extraordinary circumstances, is highly undesirable even where written arguments are submitted. It is not unlikely that some points which the litigant considers important may have escaped notice. But, what is more important is that litigants must have complete confidence in the results of litigation. This confidence tends to be shaken if there is excessive delay between hearing of arguments and delivery of judgments. Justi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gned order, then the same can only be attributed to the delay in passing the order. This delay does appear to have causesd prejudice to the Petitioner. This Court in the matter of Shivsagar Veg. Restaurant (supra) has, after considering the various decisions of the Apex Court, laid down that undue delay (four months) in delivery of judgment by the ITAT after the hearing is in itself sufficient to set aside the impugned order without considering the merits of the order. The Apex Court in the matter of Anil Rai (supra) has reiterated the observations made by an earlier Bench of Apex Court in R.C.Sharma Vs. Union of India {(1976)3-SCC-574}, which reads as under : ..Nevertheless an unreasonable delay between hearing of arguments and delivery of judgment, unless explained by exceptional or extraordinary circumstances, is highly undesirable even when written arguments are submitted. It is not unlikely that some points which the litigant considers important may have escaped notice. But, what is more important is that litigants must have complete confidence in the results of litigation. This confidence tends to be shaken if there is excessive delay between hearing of arguments and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under said agreements from SSSHIPL related to fry docking (maintenance repair) of dredgers are classified under the category of Management, Maintenance or Repair Service , as per definition contained in Section 65(64) and Section 65 (105)(zzg) of the Finance Act, 1994 read with Section 66 A of the Finance Act, 1994 Rule 2(i)(d)(iv) of the Service Tax Rules, 1994. The liability therefore is imposed under Section 65 (105)(zzg) of the Finance Act. The discussion and conclusion about how this liability is imposed is in Para 5.22 of the said order, which reads thus :- 5.22 The noticee further contended that the demand of ₹ 10,45,71,398/- in the category of Management, Maintenance or repair services as defined under Section 65 (105) (zzzg) of the Finance Act, 1994 was not maintainable as the same was rendered outside India. It is admitted position that the noticee had made payment in foreign currency to SSIHPL for repair and maintenance of the goods during the period their dry dock. The noticee was the recipient of service situated in India. The service provider was situated outside India. In respect of maintenance and repair services it is not mandatory provision ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an application of mind and litigants are satisfied that their submissions have been considered. A Circular by the Central Board of Excise and Customs dated 10 March 2017 also directs a decision be taken expeditiously where the hearing has been concluded, and the decision be communicated expeditiously. 14. Considering these peculiar facts, we are of the opinion that the Writ Petition can be entertained to set aside the order. The Commissioner will have to take a fresh decision. 15. In the circumstances, the impugned order dated 12 July 2019 passed by the Respondent No.2 is quashed and set aside. The proceedings are restored to the file of Respondent No.2. The Petitioner will appear before Respondent No.2- The Commissioner of CGST and Central Excise, Thane on 24 February 2020, wherein the Commissioner may give a further date for the hearing. The Commissioner will pass the order expeditiously in the light of the observations made by this Court in the case of EMCO Ltd. The above observations are limited to emphasis on the need for expeditious disposal and the related prejudice, and are not to be construed as reflections on the merits of the controversy. 16. Writ Petition is d ..... X X X X Extracts X X X X X X X X Extracts X X X X
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