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2025 (5) TMI 160
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....se Notices [SCN] dated 17.04.2013, 07.05.2014, 20.04.2015, 10.05.2016 and 19.03.2018 issued to the Petitioner for the periods 2007-08 to 2011-12, 2012-13, 2013-14, 2014-15, and 2015-16 to June 2017. 2. The Petitioner seeks quashing of the OIA, OIO and the SCNs, primarily on the ground of inordinate and unexplained delay in their adjudication, contending, inter alia, that: (a). The impugned OIA, OIO and SCNs are liable to be quashed for being constitutionally untenable and against the Principles of Natural Justice. (b). The inordinate delay in adjudication deprived the Petitioner of a fair opportunity to defend its case. (c). Although the SCNs were issued between the years 2013 to 2018 and replies were filed at the relevant time, the final adjudication was kept pending for several years, ranging from seven to twelve years. (d). The Respondents have violated the mandate of Section 73 (4B) of the Finance Act, 1994 [Finance Act] which provides a specific timeframe for adjudication i.e., six months or one year from the issuance of the SCN. (e). In respect of the first four SCNs dated 17.04.2013, 07.05.2014, 20.04.2015 and 10.05.2016, a per....
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....ed 27.12.2016. • Common Additional Submissions dated 26.03.2024. • 27.12.2016 • 15.03.2024 Common order dated 27.06.2024 2012-13 07.05.2014 • Reply 12.06.2014. • Common Written Submission dated 30.12.2016 pursuant to hearing dated 27.12.2016. • Common Additional Submissions dated 26.03.2024. 2013-14 20.04.2015 • Reply 15.05.2015. • Common Written Submission dated 30.12.2016 pursuant to hearing dated 27.12.2016. • Common Additional Submissions dated 26.03.2024. 2014-15 10.05.2016 • Common Written Submission dated 30.12.2016 pursuant to hearing dated 27.12.2016. • Common Additional Submissions dated 26.03.2024. 2015-16 to 2017-18 (upto June 2017) 19.03.2018 • Reply dated 04.04.2018. • Common Additional Submissions dated 26.03.2024. 15.03.2024 10. Vide a common OIO dated 27.06.2024, the Additional Commissioner, CGST, Delhi (East), summarily dismissed the contentions of the Petitioner on the issue of delayed adjudication and confirmed the demands proposed in the SCNs. 11. Being aggrie....
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.... aspect concerning the subject matter. I, however, refrain from quashing the matter on the ground of delay as during the intervening period, the Corona related guidelines leading to complete lockdown were at place and further the suomoto cognizance of the problems arising on account of the epidemic by the Hon'ble Supreme Court for not considering a certain period for reckoning the limitation period. Besides, at the given point of time, there was no rigidity or inflexibility under any given provision of the Finance Act, 1994 stipulating any time limit for completion of adjudication proceedings. I have also carefully gone through the Section 73 (4B) of the Finance Act, 1994 which is reproduced as under: Section 73-Recovery of service tax not levied or paid or short-levied or short-paid or erroneously refunded (4B) The Central Excise Officer shall determine the amount of service tax due under sub-section (2)- within six months from the date of notice where it is possible to do so, in respect of cases falling under sub-section (1); within one year from the date of notice, where it is possible to do so, in respect of cases falling under the provis....
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....e intention of the legislation in providing the flexibility in adjudication under Section 73 (4B) of the Finance Act, 1994 was nothing but a recognition of the complex process involving scrutiny of records etc. which can take a longer time. In the impugned context, I note that Demand cum Show Cause Notice was issued on the basis of investigation conducted by the Anti-Evasion branch, which were well within the knowledge of the appellant and the same are to be decided, after taking into account their written submission and submissions tendered during personal hearing, by issuing an appealable Order. Needless to mention that the Demand cum show cause notices and subsequent order is a part of principle of natural justice. Thus, notice issued for personal hearing before passing on adjudication order is a part of principle of natural justice given to the appellants. The Hon'ble Supreme Court in the case of CCE, New Delhi Vs M/s Bhagsons Paint Industry (India), reported in 2003 (158) ELT 129 (SC) 2003-TIOL-21-SC-CX, has held that there is no statutory bar to adjudicate the matter even after lapse of nine years after the issue of show cause notice and the adjudication pertains only to ....
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....dependent on whether the allegation be plainly of short-levy, non-levy or erroneous refund as contrasted with cases where that may have occurred by reason of fraud, collusion, wilful misstatement or suppression of facts. However, and of significance is sub-section (4-B), and which continues to employ the phrase "where it is possible to do so" as opposed to the amendments which came to be made in Section 28 of the Customs Act. ***** 20. We have chosen to extract those provisions for the sake of completeness and notwithstanding the petitioners asserting that by virtue of Section 174 (2) of the CGST Act, and which constitutes the 'Repeal and Saving' clause, it would be the provisions of the 1994 Act which would govern. 21. In terms of Section 73 (1) of the CGST Act, which is principally concerned with cases other than where allegations of fraud, wilful misstatement or suppression of facts are made, and pertains to tax incorrectly computed, erroneously refunded or benefits wrongly availed, sets out terminal points within which action referable to that provision would have to be commenced and concluded. A final order on the culmination of adjudication is liabl....
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....a license to keep matters unresolved for years. The flexibility which the statute confers is not liable to be construed as sanctioning lethargy or indolence. Ultimately it is incumbent upon the authority to establish that it was genuinely hindered and impeded in resolving the dispute with reasonable speed and dispatch. A statutory authority when faced with such a challenge would be obligated to prove that it was either impracticable to proceed or it was constricted by factors beyond its control which prevented it from moving with reasonable expedition. This principle would apply equally to cases falling either under the Customs Act, the 1994 Act or the CGST Act. 86. When we revert to the facts that obtain in this batch, we find that the respondents have clearly failed to establish the existence of an insurmountable constraint which operated and which could be acknowledged in law as impeding their power to conclude pending adjudications. In fact, and to the contrary, the frequent placement of matters in the call book, the retrieval of matters therefrom and transfer all over again not only defies logic it is also demonstrative of due application of mind quite apart from the ....
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....t intended to be exploited or interpreted as an endorsement of inaction. The statutory provisions affording such flexibility must not be invoked arbitrarily over an extended period, absent sufficient cause or reasonable justification. 18. Ultimately it is incumbent upon the authorities to establish that it was genuinely hindered and impeded in resolving the dispute with reasonable dispatch. A statutory authority, when faced with such a challenge, would be obligated to prove that it was either impracticable to proceed with or was constrained by factors beyond its control which prevented it from moving with reasonable expedition. The authority does not, in fact, assert as such in the present case. 19. The Petitioner has also rightly drawn our attention to the judgments of M/s Shree Baba Exports (supra) and National Building Construction Co. Ltd.(supra) which categorically held that the statutory time frame for adjudication must be adhered to and that delayed adjudication will be barred. 20. The contents of Para 7.1 of the impugned OIA, extracted hereinabove, seeking to explain the delay in adjudication, do not inspire the confidence of the Court. The reasoning offered therei....