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TMI Blog2024 (12) TMI 1145X X X X Extracts X X X X X X X X Extracts X X X X ..... denying that the taxation forms the backbone of a nation's economy, any inordinate delay by the Revenue itself in prosecuting its own cases cannot be construed in their favour by stretching the period of limitation to nine years especially when the provision requires the proceedings to be concluded within six months / one year - De hors the aforesaid findings, even if one accepts that the time period of six months/one year as mentioned in Section 73 (4B) of the Finance Act is only suggestive, it would be unreasonable to hold that the same can be extended till a period of nine years in the given facts and circumstances of the case. The Revenue s contention that it was justified in keeping the proceedings in this case, in abeyance because an appeal pertaining to similar issue was pending before the learned CESTAT, is unmerited. The filing of an appeal in another case qua the petitioner, though on identical issue, and its pendency before the learned CESTAT cannot be held as a valid reason for not conducting the proceedings in the present case, after a show cause notice has already been issued, within the time frame as laid down in Section 73 (4B) of the Finance Act. Even if the sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation Cess and Secondary Higher Education Cess) for the period 2012-13 and 2013-14, under proviso to Section 73 (1) of the Finance Act, 1994 [hereafter the Finance Act ] along with interest and penalties. 3. The petitioner, refuting the allegations made in the impugned show cause notice, had filed his reply dated 26.05.2015 which was duly received and acknowledged. A notice dated 30.09.2015 was then issued to the petitioner, requiring him to attend the hearing in respect of the impugned show cause notice, on 19.10.2015. The petitioner had appeared before the Commissioner Audit-1, New Delhi on 19.10.2015, where the said hearing had taken place and the same was concluded on the same day. The copy of the records of personal hearing was also made available to the counsel of the petitioner. The petitioner however submits that despite the hearing being concluded on 19.10.2015 in respect of the impugned show cause notice, the order qua the same was not communicated to the petitioner. 4. However, after almost nine years from the date of issuance of the impugned show cause notice, the petitioner now received a fresh notice of hearing dated 18.09.2024 [hereafter the impugned hearing notice ] ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... proceedings qua the impugned show cause notice were deferred, in compliance with Circular No. 162/73/95-CX dated 14.12.1995 issued by the CBEC. It is contended that the deferment was communicated to the petitioner by the Assistant Commissioner (Adj.), Service Tax, Audit-I, Delhi, by way of letter dated 29.01.2016. 9. Therefore, the Revenue has now issued the impugned hearing notice to the petitioner on 18.09.2024 to proceed with the pending proceedings. SUBMISSIONS BEFORE THE COURT Submissions on behalf of the Petitioner 10. The learned counsel appearing for the petitioner has argued that the impugned hearing notice dated 18.09.2024, issued in pursuance of the impugned show cause notice dated 21.04.2015, cannot be sustained in law. It was contended that since the Commissioner of Service Tax had already dropped the proceedings pertaining to the petitioner in respect of earlier year and thereafter, the learned CESTAT had also dismissed the Revenue s appeal, there was no justification in law to re-initiate the adjudicating proceedings after a gap of about nine years in respect of the impugned show cause notice dated 21.04.2015, whereon the hearing had already concluded on 19.10.2015, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ned hearing notice and the impugned show cause notice. Submissions on Behalf of the Revenue 15. The learned counsel appearing for the Revenue has argued that the impugned hearing notice dated 18.09.2024 does not suffer from any infirmity, since the proceedings pertaining to the present case had been kept in abeyance, till the decision of learned CESTAT in Service Tax Appeal No. 2258 of 2012, and after the disposal of the said appeal, the impugned hearing notice was issued to the petitioner to complete the proceedings. 16. It was contended on behalf of the Revenue that under Section 73 (4B) (a) (b) of the Finance Act, the officer has to determine the amount of service tax due within six months or one year from the date of notice (as the case may be), where it is possible to do so . The learned counsel laid emphasis on the fact that by incorporating the words where it is possible to do so , the legislature has clarified that the limit of one year is only suggestive in nature and is not mandatory. Therefore, it was stated that the impugned hearing notice cannot be held as time-barred. 17. It was further argued that consequent to implementation of GST, the officers appointed under the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eunder: ...20. Though we are not required to examine the fitment within the claimed enumeration of works contract service , we find that the respondent was involved in the shifting of the existing water pipelines belonging to Delhi Jal Board which, by implication, ultimately is rendering of services to that agency which the grounds of appeal admits to being eligible for exclusion from tax. In terms of the decision of the Hon ble High Court of Madras in M/s Indian Hume Pipes Co Ltd, the laying of pipelines as an adjunct of civil structure would alone bring the activity within the ambit of section 65 (105) (zzd) of Finance Act, 1994 and from the nature of the work undertaken, it is apparent that the activity contracted out by the respondent does not relate to civil work for facilitating the network of Delhi Metro Rail Corporation. 21. The grounds of appeal are limited to the distinguishability of Delhi Metro Rail Corporation from Delhi Jal Board insofar as the organizational objectives are concerned. The exclusion of the alleged taxable service sought to be fastened on them from any contract other than service simpliciter erases the distinction of commercial outcome suggested by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ne year from the date of notice, where it is possible to do so, in respect of cases falling under the proviso to sub-section (1) or the proviso to sub-section (4A). 26. The learned counsel for the Revenue argued that the language used in the above-noted provision, governing the limitation in the cases as the present one, itself makes it clear that it is only suggestive rather than being mandatory. Though the Revenue contended that a letter had already been issued to the petitioner stating that the proceedings are being kept in abeyance qua the impugned show cause notice and the same was disputed by the petitioner who stated that no such letter was received by him, the fact remains that the matter was not transferred to call book. Further, the argument of the learned counsel for the Revenue that the timeline given in the above-noted provision is only suggestive and not mandatory, has already been dealt with by the Coordinate Bench of this Court in Sunder System Pvt. Ltd. v. Union of India Ors (supra), wherein it was observed as under: 9. A Coordinate Bench of this Court in the case of National Building Construction Co. Ltd. Vs. Union of India; 2019 (20) G.S.T.L. 515 (Del.) has held ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it where it is possible to do so, for the reason that the adjudicating authority for several reasons may not be in a position to decide the matter within the specified time frame, namely, a large number of witnesses may have to be examined, the record of the case may be very bulky, huge workload, non-availability of an officer, etc. which are genuine reasons for not being able to determine the amount of duty within the stipulated time frame. However, when a matter is consigned to the call book and kept in cold storage for years together, it is not on account of it not being possible for the authority to decide the case, but on grounds which are extraneous to the proceedings. In the opinion of this court, when the legislature in its wisdom has prescribed a particular time limit, the CBEC has no power or authority to extend such time limit for years on end merely to await a decision in another case. The adjudicatory authority is required to decide each case as it comes, unless restrained by an order of a higher forum. (Emphasis added) 28. Therefore, what manifests from the above-noted decisions is that a statute or the language of a statute / provision cannot be read to go against it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ncy of the appeal before the learned CESTAT. The decision of the learned CESTAT, concededly, has been accepted and not challenged by the Revenue. 31. The Revenue s contention that it was justified in keeping the proceedings in this case, in abeyance because an appeal pertaining to similar issue was pending before the learned CESTAT, is unmerited. The filing of an appeal in another case qua the petitioner, though on identical issue, and its pendency before the learned CESTAT cannot be held as a valid reason for not conducting the proceedings in the present case, after a show cause notice has already been issued, within the time frame as laid down in Section 73 (4B) of the Finance Act. Even if the said appeal was pending, the proceedings in this case could have continued and order(s) could have been passed, and if aggrieved, the Revenue could have again approached the learned CESTAT by way of an appeal. However, strangely, the Revenue did not proceed with the case, awaiting the outcome in the appeal pending before the learned CESTAT, and in the meanwhile, the petitioner was left under the impression that since he had not received any adverse communication/order from the Revenue, the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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