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TMI Blog2023 (8) TMI 1152X X X X Extracts X X X X X X X X Extracts X X X X ..... e adjudicated within a reasonable time depending the facts of each case. In COVENTRY ESTATES PVT. LTD. VERSUS THE JOINT COMMISSIONER CGST AND CENTRAL EXCISE ANR. [ 2023 (8) TMI 352 - BOMBAY HIGH COURT] , it was held that reasonable time would not be an egregious, unjustified and unexplained inordinate delay. Having perused the reply affidavit, there are no justification whatsoever is given by the Deputy Commissioner in Commissioner not adjudicating the show cause notice - the present case is clearly covered by our decision in Coventry Estates Pvt. Ltd. Versus The Joint Commissioner CGST and Central Excise Anr. in regard to the legal position set out. Petition allowed. - G.S. KULKARNI JITENDRA JAIN, JJ. For the Petitioner : Mr. Prakash Shah with Mr. Jas Sanghavi and Mr. Yash Prakash i/b. PDS Legal. For the Respondents : Mr. Ram Ochani. ORAL JUDGMENT (PER G. S. KULKARNI, J.):- 1. Rule, made returnable forthwith. The respondents waive service. By consent of the parties, heard finally. 2. The present petition filed under Section 226 of the Constitution is another classic case where the lackadaisical approach of respondent no. 2- Commissioner of Central Excise in not adjudicating the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the revenue. We also observed that if prompt adjudication of the show cause notice is not undertaken, such lapse of time and certainly a long lapse of time is likely to cause irreversible changes frustrating the whole adjudication. Our observations in that regard are required to be noted which read thus:- 17. In our opinion, in the facts of the present case, such requirement and obligation the law would mandate is completely overlooked by the officer responsible for adjudicating the show cause notice. We are not shown any provision, which in any manner would permit any authority to condone such inordinate delay on the part of the adjudicating officer to adjudicate show cause notice. There can be none, as the legislature has clearly intended to avoid uncertainty, which otherwise can emerge. Thus, what would become applicable are the settled principles of law as laid down in catena of judgments, that the period within which such adjudication should happen is as mandated by law and in any case it needs to be done within a reasonable period from the issuance of the show cause notice. Further, whether such period is a reasonable period would depend upon the facts and circumstances of ea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xcise Anr. (supra), as also this order to the Secretary, Ministry of Finance, so as to appraise him of a legal approach to be adopted by the adjudicating officers, who are vested with such substantial powers of issuing show cause notices and who are dealing with public revenue, so that a robust approach can be adopted in effectively adjudicating the show cause notices, unless such mechanism already exist. We will be failing in our duty if we do not request the Finance Secretary to look into such issues. 6. Now coming to the facts of this case, a show cause notice in question was issued to the petitioner by respondent no. 2 about twelve years back i.e. on 21 October, 2010, alleging non-payment of service tax on import of service on bank charges under banking and financial services and professional fee under Management Consultancy Services. The petitioner was called upon to show cause as to why Service Tax amounting to Rs. 7,79,52,151/- as set out in Annexure A to the said show cause notice, should not be demanded and recovered from it under the proviso to Section 73(1) of the Finance Act, as also interest and penalty levied as set out in the show cause notice. 7. The petitioner resp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the petitioner. In this view of the matter, the petitioner by its letter dated 15 March, 2016 addressed to respondent no. 2 requested to grant fresh dates in the month of May 2016 for hearing on the show cause notice. The office of respondent no. 2 by its letter dated 25 April, 2016, informed the petitioner that a fresh personal hearing was fixed on show cause notice on 11 May, 2016 at 04.00 p.m. On receipt of such notice, the petitioner once again addressed a letter to respondent no. 2 dated 04 May, 2016 reiterating the request for providing the break-up in respect of import of services under the Management Consultancy Services. Surprisingly, respondent no. 2 did not proceed to pass any orders and at the request of the petitioner, adjourned the hearing. 10. At this stage, it needs to be observed that respondent no. 2 ought to have been conscious that the show cause notice itself was issued in the year 2010 and any further adjournment on any ground by the respondents could have been appropriately dealt. We also note that there is no explanation whatsoever in this regard in the reply affidavit as well. 11. The petitioner, on the above backdrop, by its letter dated 13 May, 2016, aga ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ersonal hearing was fixed on 09 February, 2021, however, without any supporting document that any intimation/notice to this effect was served on the petitioner. It is further contended that thereafter a hearing was again fixed on 22 February, 2021. Again there is nothing to show that any intimation of a hearing was issued to the petitioner. It appears to us that such contentions raised without any supporting documents and the manner the law would certainly under no scantity to such contention of the respondents, much less expect this Court to accept such contentions. In our opinion, such averments as made in the reply affidavit are clearly an eyewash and/or a lame attempt to cover up the delay. In any event such can never be an explanation for a prolonged delay of almost more than 11 years for respondent no. 2-Commissioner of Central GST, Mumbai not to adjudicate the show cause notice. It is also seen from the reply that there is not a semblance of justification which has been set out which would persuade us to accept that such long delay of 5 years in the first tranche and another 5 years delay in second tranche i.e. period from 2011-16 totalling to more than 10 years, was justifi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the decision of the Delhi High Court wherein in the facts of the case, even a delay of 18 months in adjudication of show cause notice was considered to be fatal, in dealing with the issues which had fell under Section 29 of the Customs Act. Their Lordships observed thus:- 46. In our view, there is no material to show that it was not possible for the proper Officer to determine the amount of duty within the prescribed period. The mention of the words, where it is not possible to do so , in our opinion, does not enable the Department to defer the determination of the notices for an indeterminate period of time. The legislature in its wisdom has provided a specific period for the authority to discharge its functions. The indifference of the concerned officer to complete the adjudication within the time period as mandated, cannot be condoned to the detriment of the assessee. Such indifference is not only detrimental to the interest of the taxpayer but also to the exchequer. 16. We may also observe that there is no material whatsoever on record including in the affidavit that respondent no. 2 which in any manner would justify such non-adjudication on the ground that it was not possib ..... X X X X Extracts X X X X X X X X Extracts X X X X
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