AI OCR 
TaxTMI 
TaxTMI 
TaxTMI 
2023 (10) TMI 506
X X X X Extracts X X X X
X X X X Extracts X X X X
....ith the liability of (i) service tax amounting to Rs. 1,23,52,604 /for the period 2015-16 to 2017-18 (Upto June, 2017) under Section 73(2) of the Finance Act, 1994 along with applicable interest under Section 75 of the Finance Act, 1994, (ii) Penalty amounting to Rs. 10,000/under section 77(2) of the Finance Act, 1994, (iii) Penalty amounting to Rs. 1,23,52,604/under Section 78 of the Finance Act, 1994, since the said order is bad in law, has been passed beyond the prescribed period of limitation and is against the Provisions of the Finance Act, 1994 read with the rules under Service Tax Rules, 1994. (ii) For issuance of an appropriate writ(s)/order(s)/ direction(s) including a writ of certiorari for setting aside the Demand-Cum-Notice to Show Cause, dated 23.10.2019 and bearing reference no. F. No. 34/DGCEI/JRU/ ST/SCM/Gr.B/2018, issued by Respondent No. 3 (Annexure-1) since the said Demand cum Notice to Show Cause is illegal, barred by period of limitation, arbitrary, unreasonable and against the provisions of the Finance Act, 1994 read with the prescribed rules under Service Tax Rules, 1994. (iii) For issuance of any other appropriate Writ(s), order(s), and/ or direction(s),....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ame has been issued approximately after three years from the date of issuance of SCN on 23.10.2019. (iii) The Order-in-Original has been passed after the delay of 02 months 11 days from the last date of personal hearing and, therefore, is in teeth of the Circular dated 10.03.2017 (Annexure-6 series) which has been reiterated in the later Circular dated 18.11.2021. (iv) SCN bearing F. No. 34/DGCEI/JRU/ST/SCM/Gr.B/2018/3006 dated 23.10.2019 (Annexure-1) is different from the SCN bearing F.No. 34/DGCEI/JRU/ST/SCM/Gr.B/2018/3005 adjudicated upon by the Assessing Authority. Relying upon the aforesaid submissions, Mr. Lamba contended that the impugned order is fit to be quashed and set aside. 5. Mr. P.A.S.Pati, learned counsel for the respondent No. 4 submits that the adjudication order issued against SCN bearing ref. no. F. No. 34/ DGCEI/ JRU/ ST/ SCW/Gr. B/2018/3005 is valid and sustainable as this order is issued against the same SCN which were provided to the petitioner. The petitioner was fully aware of this SCN dated 23.10.2019 issued to them, as they have always replied to the letters issued for fixing personal hearing date and also submitted defense reply against the same s....
X X X X Extracts X X X X
X X X X Extracts X X X X
....dent Nos. 2 and 3 has adopted the counter affidavit and submissions made by the learned counsel for the respondent No. 4. 7. In reply to the aforesaid submissions, Mr. Lamba reiterated the contention made by him and submits that the Petitioner was never in receipt of notice for personal hearing scheduled for, 20.01.2022 and 08.03.2022 being the alleged dates for personal hearing mentioned in the Impugned Order. The last opportunity of personal hearing was communicated to the Petitioner for personal hearing fixed on 23.12.2021. He reiterated that the last date of personal hearing provided to the Petitioner was 23.12.2021 but the subsequent dates of personal hearing which have been alleged by the Respondent in the Impugned Order is only to cover up their delay and latches and specifically their miserable failure to comply with Clause 4.3 of the instruction, dated 18.11.2021, issued by the Central Board of Indirect Taxes and Customs read with the Master Circular No. 1053/ 02/ 2017 - CX dated 10.03.2017. 8. Having heard learned counsel for the parties and after going through the averments made in the respective affidavits and the documents annexed therein, it transpires that the main....
X X X X Extracts X X X X
X X X X Extracts X X X X
....d that the circulars issued by the Department are binding on the Department. See K.P. Varghese v. ITO [(1981) 4 SCC 173 : 1981 SCC (Tax) 293] , UCO Bank v. CIT [(1999) 4 SCC 599] , CCE v. Dhiren Chemical Industries [(2002) 2 SCC 127], etc. In all these cases it has been held that the circulars issued under the Income Tax Act or the Central Excise Act are binding on the Department. It may be noted that in the circulars issued by the Commissioner of West Bengal, reference has been made to the correspondence resting with the Ministry of Finance (Department of Revenue) Letter No. 4/22/61-IT(AT) dated 25-11-1961, wherein it is stated that the Department's view has all along been that an individual is (sic not) "not ordinarily resident" unless he satisfies both the conditions in Section 4-B(a) i.e. (i) he must have been a resident in nine out of ten preceding years; and (ii) he must have been in India for more than two years in the preceding seven years. In the present case, the circular issued by the Board in which the opinion of the Central Government, the Ministry of Finance (Department of Revenue) Letter No. 4/22/61-IT(AT) dated 25-11-1961 has been noted, the interpretation simil....
X X X X Extracts X X X X
X X X X Extracts X X X X
....statements or confessions made to him." Following this principle, therefore, it is clear that RBI can only direct banking institutions to move under the Insolvency Code if two conditions precedent are specified, namely, (i) that there is a Central Government authorisation to do so; and (ii) that it should be in respect of specific defaults. The Section, therefore, by necessary implication, prohibits this power from being exercised in any manner other than the manner set out in Section 35-AA." 11. In the instant case, admittedly, the Respondent Department has violated Clauses 14.10 of the Master Circular No. 1053/ 02/2017-CX dated 10.03.2017, and Clause 4.3 of the Instructions dated 18.11.2021 issued by the Central Board of Indirect Taxes and Customs. Clause 14.10 of the said Master Circular, issued by the Central Board of Indirect Taxes and Customs, is reproduced herein below for ready reference: "14.10 Issue and Communication of Order: In all cases where personal hearing has been concluded, it is necessary to communicate the decision as expeditiously as possible but not later than one month in any case, barring in exceptional circumstances to be recorded in the file. The ord....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... One is considering the alleged date of last personal hearing as provided in the Impugned Order. Other is considering the valid and lawful date of last personal hearing. As per the alleged date of last personal hearing i.e., 08.03.2022 as provided in the Impugned Order is concerned, the Impugned Order was communicated to the security guard of the building, where the Petitioner has its office, on 27.05.2022 i.e., after 2.5 months against the required period of 1 month. 13. At this stage it is also pertinent to clarify the submission of the Petitioner that the alleged date of last personal hearing in the Impugned Order, which is 08.03.2022, and also the alleged date of personal hearing on 20.01.2022, cannot be considered to be valid personal hearing since no prior notice for such personal hearings were served by the Respondents to the Petitioner. In this regard, it is relevant to refer the Master Circular again. Clause 14.3 of the said Master Circular, issued by the Central Board of Indirect Taxes and Customs, provides that separate notice for each personal hearing shall be made/served to the noticee. Clause 14.3 is reproduced herein below for ready reference: "14.3 Personal hear....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... have heard learned counsel for the parties. Learned counsel for the Petitioner relied upon the decisions in the case of Shivsagar Veg Restaurant v. Asstt. Commr. of Income Tax, Mumbai and EMCO Ltd. v. Union of India. He submitted that there is not only delay of six months from conclusion of the argument till pronouncement of order but because of this delay gross errors have occurred in the order which has caused severe prejudice to the Petitioner. Learned counsel also relied upon the Circular issued by the Central Board of Excise and Custom dated 10 March 2017 laying down guidelines for adjudicating authorities while adjudicating the matters, more particularly Clause 14.10 thereto. It is contended that in view of this the Writ Petition be entertained without relegating the Petitioner to the appellate remedy. ................................ 17. The Division Bench in the case of EMCO Ltd. has emphasized that when the proceedings are disposed of expeditiously by the authorities, it ensures there is an application of mind and litigants are satisfied that their submissions have been considered. A Circular by the Central Board of Excise and Customs dated 10 March 2017 also directs ....