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TMI Blog2025 (4) TMI 249X X X X Extracts X X X X X X X X Extracts X X X X ..... ils with regard to the alleged contravention of the provisions of the Finance Act, 1994 (Service Tax Act) as to why the service tax of Rs. 6,80,434/- including SEZ payable on the taxable service for the Financial Year 2014-2015 and 2016-2017 along with the interest and penalty should not be recovered. 3.2. Pursuant to the aforesaid notice, the petitioner was granted opportunity of hearing on 24/03/2022, 29/03/2022 and 31/03/2022 but the petitioner did not appear for hearing nor made any written submissions. Respondent no. 2 therefore passed the order in original dated 26/05/2022 demanding the service tax of Rs. 6,80,434/- together with interest and penalty of the same amount as alleged in the show cause notice in absence of any defense/written submissions filed by the petitioner on the basis of the information made available by the Income Tax Department regarding details of income of various persons in Form-26AS which shows that the petitioner had earned income by providing services classified under various Service Sectors like Contractors, I.T. enabled services, Professionals, Software Development, Commission Agent etc. under the provisions of Sections 194C, 194H, 194I and 194J o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t respondent no. 2 could not have assumed the jurisdiction under Section 73 (1) of the Finance Act, 1994 by considering that non-filing of service tax returns would amount to willful suppression with an intention to evade the tax. 8. Learned advocate Mr. Gnanesh Bhatt also referred to and relied upon decision of the Commissioner (Appeals) in similar case of one Maltiben Bhakabhai Dabhi being order in Appeal No. BHV-EXCUS-000-APP-063-2023 dated 20/02/2023 wherein the show cause notice and demand raised by the department was set aside. It was therefore submitted that similar order also may be passed in case of the petitioner on the same ground. 9. It was therefore submitted that in interest of justice impugned orders may be quashed and set aside and the matter may be remanded to respondent no. 2 so as to enable the petitioner to file appropriate reply which may be considered in accordance with law. 10. On the other hand, learned advocate Mr. Maulin Yajnik for the respondent submitted that the petitioner has failed to file any reply inspite of services of the notice. It was submitted that the petitioner was also provided opportunity of hearing by respondent no. 2 before passing the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tended period of five years as per the proviso to Section 73 (1) of the Act. 16. It was therefore submitted that no interference may be made in the impugned orders passed by respondents as the same are based upon the material available on record. 17. Learned advocate Mr. Maulin Yajnik also referred to the further affidavit filed on behalf of the respondent wherein pursuant to the order passed by this Court on 17/10/2024 relevant documents from which it can be established that opportunity of hearing was provided by the adjudicating authority to the petitioner prior to passing the ex-parte order in original were placed on record. It was pointed out from Annexure-B at page-100 that respondent no. 2 has issued the notice of personal hearing on 16/03/2022 which was duly served upon the petitioner as per the acknowledgment receipt of RPAD placed on record. (page-101 of the paper-book). It was therefore submitted that the petitioner was duly served for hearing and there was no fault on part of respondent no. 2 to grant an opportunity of hearing and therefore the petitioner should not be given further opportunity of hearing. 18. In response to the affidavit-in-reply, learned advocate Mr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e by showing sufficient cause and in such a case, the adjudicating authority may grant time and adjourn the hearing by recording the reasons in writing. However, in view of the proviso thereto not more than three such adjournments can be granted. On a plain reading of subsection (2) of section 33A of the Act and the proviso thereto, what the same envisages is fixing a date of hearing and in case if a party asks for time and makes out sufficient cause, then to adjourn the hearing. Since the number of such adjournments is limited to three, the hearing would be required to be fixed on each such occasion, and on every occasion when time is sought and sufficient cause is made out, the case would be adjourned to another day. However, the adjudicating authority is required to give one date at a time and record his reasons for granting adjournment on each occasion. It is not permissible for the adjudicating authority to issue one consolidated notice fixing three dates of hearing, whether or not the party asks for time, as has been done in the present case. Thus, apart from the fact that the notice of hearing has not been served in the manner contemplated under section 37C of the Act, the n ..... X X X X Extracts X X X X X X X X Extracts X X X X
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