9911796707
TMI Blog2025 (4) TMI 1192X X X X Extracts X X X X X X X X Extracts X X X X ..... nd of Service Tax of Rs. 3,54,59,160/- under proviso to Section 73 (1) of the Finance Act, 1994 along with levy of interest under Section 75 and equal amount of penalty under Section 78 and further penalty of Rs. 10,000/- each under Section 77 (1) (a), 77 (1) (c) and 77 (2) of the Act arises out of the Order No. 17/ST/Commissioner/2023-24 dated 29.02.2024. (ii) For issuance of appropriate writ to the effect that order passed demanding tax, interest and penalty is violative of principles of natural justice and contrary to Section 83 of the Finance Act, 1994 read with Section 33A of the Central Excise Act, 1944 and C.B.E.&C. Circular No. 1053/02/2017-CX dated 10.03.2017 by not extending third opportunity of personal hearing. (iii) For issuance of appropriate writ to the effect that receipt of income from design, construction, supply, testing and commissioning of pipe water supply scheme with electric-driven pump and suitable treatment plant in fluoride effective habitants of Jamui district on turnkey basis is exempted from the Service Tax under Serial No. 12 (e) of the Mega Exemption Notification No. 25/2012-ST dated 20.06.2012. (iv) For issuance of a direction to stay the o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y of Rs. 10,000/- (Rupees Ten Thousand only) upon the Noticee under Section 77 (2) of the Act read with Section 174 of the CGST Act, 2017;" Submissions on behalf of the Petitioner 5. Learned counsel for the petitioner submits that the petitioner has been engaged under an agreement dated 30.11.2016 executed by the Executive Engineer, Public Health Division, Jamui to execute, design, construction, supply, testing and commissioning of 100 pipe water supply schemes with electric driven pump and suitable treatment plants in fluoride affected habitations of Jamui District on turnkey basis with three months of trial run after commissioning and comprehensive O&M of sixty months after successful completion of trial run period, for an amount of Rs. 41,87,94,900/-. A copy of the agreement dated 30.11.2016 along with issue of notice to proceed with the work, approval letter, item wise cost break up, press notice and bidding document for the work have been brought on record as Annexure-P1 Series. 6. Learned counsel for the petitioner submits that another agreement was executed on 24.04.2017 to execute, design, construction, supply, testing commissioning of Piped Water Supply Schemes with e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of the petitioner company who were no longer associated with the company, hence, the petitioner company would require some time to come back and produce the relevant documents. 10. It is submitted that the discussions which took place on 14.02.2024 have been mentioned in the first part of paragraph '3.2' of the impugned order (Annexure-P4) and from this part of the order, it would appear that second date of hearing was fixed on 14.02.2024 but thereafter, no further date was fixed by Respondent No. 3. In the later part of paragraph '3.2', Respondent No. 3 has stated that the representative of the petitioner was explicitly asked to provide substantiating documentation supporting the assertions made by the noticee but even after 15 days, the noticee had failed to submit any documents in support of his claim. In fact, the representative of the petitioner company had informed Respondent No. 3 about the nature of the company's operations. It was brought to the notice of Respondent No. 3 that the company is focusing on water treatment and solar energy projects, therefore, this fact was well within the notice of Respondent No. 3. 11. It is submitted that on the 15th day from 14.02.2024 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sion Bench of Delhi High Court in the case of Shyam Indus Power Solutions Private Limited Vs. Principal Commissioner CGST, Delhi North reported in (2025) 29 Centax 94 (Del.), learned counsel submits that in the said case, the Hon'ble Division Bench has referred to the previous case laws on the subject and has held in unequivocal words that the matters having financial liabilities or penal consequences cannot be kept unresolved for years and the phrase "where it is possible to do so" cannot be a license to keep matters pending for years. The flexibility provided by the legislation is not meant to be misused or construed as sanctioning indolence. The statutory lethargy cannot be brought into play routinely and in an unfettered manner for years, without any due justification or explanation. 16. It is submitted that in this case, even as the show cause notice was issued on 13.10.2021, the first date of hearing was 11.01.2024 i.e. after more than two and half years. This is an inordinate delay without there being any plausible reason and at least on record, nothing has been brought to demonstrate that it was not possible for Respondent No. 3 to determine the liability of the petitioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he present case, the Chief Commissioner, CGST and CX accorded approval for transfer of 34 cases including the present case to the Commissioner, CGST and CX, Audit Commissionerate, Patna for adjudication vide Letter C.No. V(8)1-CCO/Patna/Stt./Adj. 17-18/Pat-1/12494-99 dated 18.09.2023. Within five and half months thereafter, the impugned order has been passed by the Respondent No. 3. It is submitted that considering that the show cause notice was issued on 13.10.2021 which was the Corona period, the delay in determination of the liability cannot be taken to have given a right to the petitioner to assail the impugned order on this ground. Consideration 22. We have heard learned counsel for the petitioner as well as learned Senior Standing Counsel for the CGST and CX. Since we are of the view that this writ application is fit to be allowed on the very first ground taken by learned counsel for the petitioner i.e., the ground of violation of principles of natural justice, the other issues raised by learned counsel for the petitioner are not required to be discussed and adjudicated upon for the present in this writ application. 23. On the point of violation of principles of natural jus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing.]" 25. The spirit of Section 33A may be found in paragraph '14.3' of the master circular no. 1053/2/2017-CX dated 10.03.2017 (Annexure-P5). Paragraph '14.3' reads as under:- 14.3 Personal hearing : After having given a fair opportunity to the noticee for replying to the show cause notice, the adjudicating authority may proceed to fix a date and time for personal hearing in the case and request the assessee to appear before him for a personal hearing by himself or through an authorised representative. At least three opportunities of personal hearing should be given with sufficient interval of time so that the noticee may avail opportunity of being heard. Separate communications should be made to the noticee for each opportunity of personal hearing. In fact separate letter for each hearing/extension should be issued at sufficient interval. The Adjudicating authority may, if sufficient case is shown, at any stage of proceeding adjourn the hearing for reasons to be recorded in writing. However, no such adjournment shall be granted more than three times to a noticee." 26. Further, paragraph '14.4' of the master circular mandates that the adjudicating authority must maintain a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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