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TMI Blog2022 (12) TMI 565X X X X Extracts X X X X X X X X Extracts X X X X ..... in passing adjudication orders which will be causing difficulties and obstacle in realizing public revenue expeditiously. In fact, in the interest of revenue itself, delay in passing of the adjudication orders would act as an impediment in timely realization of the disputed amount. That apart, pronouncement of judgment, being a part of justice dispensation system, has to be without delay, as justice should not only be done but should also appear to have been done. The present case is a classic example wherein due to delay in passing of the adjudication order it appears that the most vital documents submitted by the assessee, being the reconciliation documents, were not considered and dealt with by the adjudicating authority despite the fact that they admit now in the supplementary counter affidavit that the same were available on record. An obvious inference of omission to make reference to the documents can be due to the delayed delivery of the Judgment causing grave prejudice to the assessee and miscarriage of justice. Matter restored back for fresh adjudication. - W.P.(T) No. 4559 OF 2022 - - - Dated:- 5-12-2022 - HON BLE MR. JUSTICE APARESH KUMAR SINGH AND HON BLE M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ow Cause Notice was issued asking the Petitioner to show cause as to why on the differential amount as reflected in 26AS statements and the value of services provided, declared in ST-3 Return, be not treated as suppressed taxable value; and levy of service tax and also levy of interest and penalty thereupon be not imposed. 3. Pursuant to the Show Cause Notice pertaining to the periods 2012-13 to 2015-16, Petitioner submitted its reply dated 09.07.2018, and, primarily contended, inter alia, that before issuance of the Show Cause Notice at the investigation stage itself, Petitioner brought to the notice of Respondent-authorities that the figures in Form 26AS pertaining to deduction of TDS also included the TDS deducted wrongly on the value of invoices related to supply of materials on which service tax liability does not arise, and, primarily for the said reason there was difference in the figures of 26AS statements and ST-3 Returns. 4. After the aforesaid first Show Cause Notice dated 03.11.2017, personal hearing was held before the adjudicating authority namely, Commissioner of Central Goods and Service Tax Central Excise, Jamshedpur Commissionerate (Respondent No.2) on 10. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l: 02-03/S.Tax/Commissioner, 2022, dated 25.07.2022 was passed by Respondent No.2 imposing tax, interest and penalty upon the Petitioner. In the Order-in-Original, vide Para-3, it has been recorded that after personal hearing and issuance of reminder letter dated 03.12.2020, the assesse did not submit any other evidence and, accordingly, adjudication order was passed. 6. Mr. Sumeet Gadodia assisted by Mr. Salona Mittal, Advocate have assailed the adjudication order and contended, inter alia, that pursuant to personal hearing held on 12.11.2020 and subsequent letter dated 03.12.2020, Petitioner produced and filed its written explanation enclosing therewith voluminous documentary evidences for reconciliation of the difference of the value appearing in 26AS Statement and ST-3 Return, vide its letter dated 12.01.2021, but said documents have not at all been considered by the adjudicating authority, which led to passing of the Order-in-Original in fragrant violation of the principles of natural justice, as Petitioner s submissions dated 12.01.2021 have not been considered at all. Further while relying upon Master Circular No.1053/02/2017-CX dated 10th March, 2017, it has been cont ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1.08.2022 (Final Order); (5) Omfra Dredge Services Pvt. Limited v. Union of India, (2020) 372 ELT 691. (6) Pradip J. Mehta v. CIT, (2008)14 SCC 283; (7) Hindustan Level Limited v. Union of India, (2011) 264 ELT 173. 67. Per contra, Mr. P.A.S. Pati, learned advocate assisted by Ms. Ranjana Mukherjee, advocate, appearing for the revenue, raised preliminary objection regarding maintainability of the writ petition by contending, inter alia, that Petitioner has equally efficacious and alternative remedy of preferring appeal under the Finance Act, 1994 before the Central Excise and Services Tax Appellate Tribunal (CESTAT). While referring to the Order-in-Original and the Counter Affidavit filed on behalf of Respondents, it has been submitted that in the Order-in-Original, it is nowhere recorded that Petitioner has not filed its written explanation dated 12.01.2021, but it has only been recorded, inter alia, that even after issuance of a reminder dated 03.12.2020, they never produced any other evidence. By referring to the aforesaid finding in the adjudication order and Para-13 of the Counter Affidavit, it has been submitted that although letter dated 12.01.20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o of the writ petition, whereby the adjudicating authority has asked the representative of the petitioner company to provide for the explanation for the difference between the amount appearing in the 26AS and the ST-3 return for each of the year covered in the show cause notice with documentary evidence. However, though such document was submitted with a forwarding letter dated 12th January, 2021 (Annexure-20) and duly received on the same date by the office of the Commissioner, CGST Central Excise, Jamshedpur, the adjudication order at paragraph 3 (Annexure-21) surprisingly records that even after the issuance of the reminder on 3rd December, 2020, they never produced any other evidence. It is submitted that the entire adjudication has not taken into account the very explanation submitted by the petitioner on asking. Besides that, it is submitted that the adjudication order has been passed on 25th July, 2022, after about 18 months of the personal hearing and is in teeth of the specific circular, para 14.10 of the Circular dated 10th March, 2017 (Annexure-22), issued by the C.B.E.C. to all Principal Chief Commissioners/Chief Commissioners of Service Tax and other authorities of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... een gravely prejudiced and huge liability towards tax, interest and penalty has been fastened upon the Petitioner. 11. The matter was again taken up for consideration by this Court on 18.10.2022, and, on the said date, Respondents were, in substance, directed to seek instructions as to whether supporting documents filed along with Rejoinder Affidavit were forming part of the letter dated 12.01.2021 or not and whether said documents were received by the Respondent-Department. Pursuant thereto; Supplementary Counter Affidavit was filed, wherein it has been admitted that supporting documents along with the letter dated 12.01.2021 were also filed by the Petitioner. 12. At this stage it is relevant to refer relevant part of Para-3 4.3 to 4.7 of the Order in Original, which is quoted herein below:- 3. Personal Hearing .. In this regard, the Adjudicating Authority asked the said representatives to provide the explanation for the difference between the amount appearing in the 26AS and the ST-3 return for each of the years covered in the SCN/SOD, with documentary evidence. The representatives promised to submit the same. They also requested to allow them eight wee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... value (as per Form 26AS) has been considered to be Rs.89,13,00,095/- in view of the fact that the noticee did not submit any documents to substantiate that the amount charged by them from their service recipients included service tax. In the absence of copies of invoices and/or other details related to the invoices, it cannot be said that the gross amount is inclusive of service tax payable .XXX In the Order-in-Original itself, the adjudicating authority has recorded that liability cannot be determined on the basis of Form 26AS alone and the said document is only a useful starting point for examining the mismatch between 26AS and ST-3 figures and reconciliation is required to be resorted to arrive at the conclusion as to whether there is any concealment of turnover by an assessee. Despite the said fact being recorded in the Order-in-Original itself and despite the fact that, admittedly, for the periods 2012-13 to 2015-16, pursuant to personal hearing, Petitioner submitted the reconciliation statement along with documentary evidences of the difference in figures, the same was not considered in the Order-in-Original. In fact, from bare perusal of paragraphs 4.3, 4.4 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... barring in exceptional circumstances to be recorded in the file. The order is required to be communicated to the assessee in terms of provisions of Section 37C of the CEA, 1944. 14. The Hon ble Apex Court, in a catena of decisions, have held that circulars issued by the Department are binding on the Department. Reference in this regard may be made to the case of Pradip J. Mehta v. CIT (2008) 14 SCC 283) . Admittedly, in the instant case, opportunity of personal hearing was given on 12.01.2021 and the adjudication order was passed on 25th July, 2022 i.e. almost after 20 months from the date of hearing. Even if the date of furnishing of written explanation by the Petitioner i.e. on 12.01.2021 is reckoned as the starting date for passing of the adjudication order, then also the adjudication order has been passed after a delay of 18 months. Although in the Counter Affidavit it has been stated that delay in passing of the adjudication order was attributable to the Petitioner as the Petitioner delayed in submission of its document, but we fail to understand as to why adjudication order was not passed within a month after the Petitioner furnished the documents on 12.01.2021. In ..... X X X X Extracts X X X X X X X X Extracts X X X X
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