M/S.Reliance Engineering Services, v. The Commissioner,
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 22.07.2024
CORAM:
THE HONOURABLE MR.JUSTICE C.SARAVANAN and W.M.P.(MD)Nos.13269 & 13270 of 2022 M/s.Reliance Engineering Services, Represented by its Proprietor N.V.Pathy.
... Petitioner Vs.
1.The Commissioner, O/o.the Central Excise, Central Revenue Building, NGO 'A' Colony, Tirunelveli - 627 007.
2.The Superintendent of GST and Central Excise, Nagercoil Range, Nagercoil, Kanniyakumari.
3.Hindustan Construction Company, Hincon House, LBS Marg, Virkoli (W), Mumbai -400 083.
... Respondents 1/7
PRAYER: Writ Petition filed under Article 226 of the Constitution of India for issuance of Writ of Certiorarified Mandamus to call for the records in Order-inOriginal No.04/COMMR/ST/2016 dated 28.03.2016 on the file of the first respondent and quash the same as illegal, arbitrary and against the principles of natural justice and consequently, direct the respondents to redo the adjudication after affording the petitioner the opportunity to cross examine the third respondent and to pass appropriate order on the VCES-1 declaration dated 31.12.2023 filed by the petitioner.
For petitioner : Mr.J.Prasanna Kumar For respondents : Mr.R.Nanda Kumar Senior Panel Counsel for R1 & R2 *****
ORDER
The petitioner is before this Court long after the impugned Order-inOriginal No.04/COMMR/ST/2016 dated 28.03.2016 bearing reference in C.No.V/ST/15/138/2014-Adjn, was passed by the first respondent/Commissioner.
2. By the impugned order, the demand proposed in show cause notice No. 20/COMMR/ST/2014 dated 26.12.2014 bearing reference in C.No.V/ST/138/2014-Adjn, has been confirmed. Operative portion of the impugned order reads as under:
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3. The dispute pertains to the period between April 2008 to December 2012. Even prior to the impugned order, the petitioner appears to have attempted to settle the case under Voluntary Compliance Encouragement Scheme, 2013, under Section 107(1) of the Finance Act, 2013. After opting for the scheme, the petitioner failed to pay the amount. Thereafter, the statements were recorded and the aforesaid show cause notice was issued, which has culminitated in the impugned order.
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4. The learned counsel for the petitioner submits that the petitioner is entitled to the exemption from the payment of Service Tax in terms of the Notification No.23/2009-ST, dated 07.07.2009 and thereafter, under Notification No.12/2012-ST, dated 01.07.2012.
5. It is submitted that the impugned order has wrongly denied the benefit of above Notifications as also failed to note that the petitioner was only engaged in fabrication of items for the construction work and therefore, exempted from the payment of Excise Duty in terms of Notification No.3/2005-Central Excise, dated 24.02.2005.
6. On behalf of the respondents, the learned Senior Panel Counsel for the respondents would submit that this Writ Petition is devoid of merits.
7. It is submitted that this Writ Petition is hopelessly liable to be dismissed on account of latches, in the light of the decision rendered by the Hon'ble Supreme Court in the case of Assistant Commissioner (CT) LTU, Kakinada and others vs. Glaxo Smith Kline Consumer Health Care Limited reported in 2020 4/7
SCC Online SC 440.
8. It is submitted that at this stage, the petitioner cannot be relegated to file statutory appeal in view of the decision rendered by the Hon'ble Supreme Court in the case of Singh Enterprises Vs. Commissioner of Central Excise, Jamshedpur and others reported in (2008) 3 SCC 70 and submitted that this Writ Petition is liable to be dismissed.
9. Having considered the submissions made by the learned counsel for the petitioner and the learned Senior Panel Counsel for the respondents and after recording the submissions of the learned counsel for the petitioner that the petitioner is willing to comply with any reasonable terms, which the petitioner may be subjected to, the Court is inclined to set aside the impugned order passed by the first respondent and remit the case back to the first respondent to pass fresh orders on merits and in accordance with law subject to the petitioner depositing 50% of the disputed tax within a period of four months in four equated monthly installments.
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10. The first respondent shall, thereafter, pass fresh orders on merits and in accordance with law. In case the petitioner fails to pay the amount within a period of four months in four equated monthly installments, the respondents are at liberty to proceed against the petitioner as that of the present order to set aside the impugned order, had never been passed and this Writ Petition was dismissed. This Writ Petition is disposed of with above directions. No costs. Consequently, connected miscellaneous petitions are closed. Index : Yes / No 22.07.2024 Internet : Yes / No apd 6/7
C.SARAVANAN, J.
apd 22.07.2024 7/7