TaxTMI 
TaxTMI 
TaxTMI 
2025 (11) TMI 307
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....om the authority who had heard and passed the order, (c) The order passed more than a month from the date of conclusion of personal hearing, being in conflict with the circular issued by the Central Board of Excise & Customs dated 10th March, 2017, stood vitiated. 2. To appropriately appreciate the above contentions, it is necessary to note down the facts giving rise to the instant writ petition. 3. The petitioners are engaged in the business of providing services as clearing and forwarding agents. In course of its business the petitioners were issued with the show-cause-cum-demand notice under the provisions of Section 73(1) of the Finance Act, 1994 dated 12th October, 2018. Such show-cause was issued by the Commissioner, Central Tax, Kolkata North, CGST & CX. The petitioners duly responded to the said show-cause notice on 5th November, 2018. Further response was filed on 19th February, 2019. Again an additional response was filed which was received by the department on 27th April, 2021. Following the above, the personal hearing had to be re-fixed as in the interregnum, since the incumbent to the post of Commissioner, CGST & Central Excise, Kolkata North Commissione....
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....rcular dated 10th March, 2017. 7. Mr. Chowdhury submits that the order ought to have been passed within one month from the date of personal hearing. While relying on the above circulars he submits since the order has been passed belatedly, such an order cannot be sustained. In support of the above reliance has been placed on the following three judgments; (a) Innovative Security Solutions v. Commissioner of GST & C. Ex., Chennai reported in 2019 (31) G.S.T.L. 18 (Mad.), (b) LMB Sons v. Union of India reported in (2023) 11 Centax 271 (Jhar.), (c) Shantilal Jain v. Union of India reported in 2010 (252) E.L.T. 326 (Bom.). 8. He has also relied on the instructions issued by the Central Board of Indirect Taxes and Customs dated 18th November, 2021. 9. Mr. Kundalia, learned senior advocate appears on behalf of the respondents and submits that admittedly, in this case though the show-cause was issued by a particular authority, the final hearing, had been conducted by a different authority, however, to clarify he has stated that the incumbent to the post of show-cause issuing authority, who had initially heard the response to the show-cause on his transf....
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....28th February, 2023. The petitioners did not attend such personal hearing. At the instance of the petitioners, hearing was re-fixed on 21st March, 2023, 29th August, 2023 and 5th September, 2023. It is only on 19th September, 2023 that the petitioners' representative appeared and made submissions. The issue of lack of jurisdiction of the adjudicating authority was never raised before the Adjudicating Authority/Proper Officer. The circular dated 10th March, 2017 provides that the hearing ought to be concluded by the notice issuing authorities. However, the same also makes provisions for the successor in office to proceed with the matter and complete the hearing. Since, the instant case had progressed, the case was re-assigned to the incumbent who was originally holding the post of Commissioner North Commissionerate, Kolkata, I do not find any irregularity in the same as he was the original notice issuing authority. The petitioners also did not challenge the same at any stage. The above issue in my view has been raised by the petitioners as by way of an afterthought and as such the same cannot be accepted. 12. I must note that although, Mr. Chowdhury by placing reliance on the ord....
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....der passed beyond one month without any exceptional circumstances is bad and should be set aside, I find that the consideration for setting aside the order by the Coordinate Bench of the Hon'ble Madras High Court was different. I find that the Hon'ble Court in the said case by noting that the order impugned was passed more than 20 months after the personal hearing, had set aside the order. Such is not the case here. 15. Insofar as the judgment delivered in the case of L.M.B. Sons (supra) is concerned the Hon'ble Jharkhand High Court had set aside the order on the ground that the order was not communicated to the petitioners within one month from the closure of personal hearing and that there were no reasons recorded by the respondents for the delay in communicating the impugned order beyond the stipulated period of one month after closure of personal hearing. Consequently, the Court held that the impugned order was in contravention of the circulars of the revenue department and accordingly set aside the same. Although, the Hon'ble Jharkhand High Court has taken a view that an order passed in contravention of a circular cannot be sustained. I, however, find from the tenor of para....