Rajendra Singh & Brothers V. The Union of India through the Commissioner of Central Excise & Service Tax and The Superintendent (ARC), Central Excise & Service Tax, Service Tax Division-II

WPC/527/2017

AI Insights

The case involves M/s Rajendra Singh & Brothers, a partnership firm, challenging an Order-in-Original passed by the Commissioner of Central Excise & Service Tax, Ranchi, which confirmed a substantial demand of service tax along with interest and penalties for the financial years 2012-13 and 2013-14. The petitioner argued that there was a breach of the principles of natural justice as they were unable to respond to the show-cause notice due to the non-availability of certain documents, which were impounded during a search by the Income Tax department. The respondents contended that multiple opportunities were provided to the petitioner to respond, which were not availed. The court dismissed the writ petition, emphasizing the availability of an alternative remedy through an appeal to CESTAT.

• Counselvise Citation: [2018] 140 COUNSELVISE.COM (IT) 801651 (HC-JHARKHAND)
• Appeal Type: Others
• Pronouncement Date: 22-03-2018
• Assessment Year: misc
• Laws Referred To: Finance Act, 1994, Central Excise Act, 1994
• Result in Favour of: Revenue
• Court: HIGH COURT
• Department Lawyers: DEEPAK ROSHAN; AMIT KUMAR
• Assessee Lawyers: RAJEEV RANJAN; MANISH MISHRA
• Keywords: Appealable order; Interest; Penalty; Service tax; Violation of Principles of Natural Justice
• Section: 77; 35-B

Judgement Text

" IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P.(T) No. 527 of 2017 M/s Rajendra Singh & Brothers, a Partnership Firm having its Office at Lal Kothi, Ratu Road, P.O. Hehal, P.S. Sukhdevnagar, town & District: Ranchi through its Partner Uday Pratap, S/o Late Rajendra Singh, R/o Tiwari Gali, Ratu Road, P.O.: Hehal, P.S.: Sukhdevnagar, town:Ranchi, District : Ranchi … … Petitioner Versus 1. The Union of India through the Commissioner of Central Excise & Service Tax, Central Revenues Building, 5 A, Main Road, P.O.:G.P.O., P.S.: Ranchi Sadar, town & district: Ranchi 2. The Superintendent (ARC), Central Excise & Service Tax, Service Tax Division-II, Central Revenues Building, 5 A, Main Road, P.O.: G.P.O., P.S.:Ranchi Sadar, town & district: Ranchi ... ... Respondents ------ CORAM: HON'BLE THE ACTING CHIEF JUSTICE HON'BLE MR. JUSTICE AMITAV K. GUPTA ----- For the Petitioner: M/s Rajeev Ranjan, Sr. Adv. Manish Mishra, Adv. For the Respondents: M/s Deepak Roshan Amit Kumar ----- 12/Dated 22 nd March, 2018 Per D.N. Patel, A.C.J. 1. This writ petition has been preferred challenging the Order-in- Original passed by the Commissioner of Central Excise & Service Tax, Ranchi (Respondent No.1) dated 31 st March, 2016, whereby demand of Rs.8,53,65,385/- was confirmed towards Service Tax. Demand of intererst was also confirmed. Equal amount of penalty has also been imposed. The said amount is with respect to Financial Year 2012-13. Similarly, for Financial Year 2013-14, demand of service tax of Rs. 2,32,26,933/- has also been confirmed with interest and 10% penalty of the amount has also been confirmed upon the Noticee- present petitioner with further penalty under the provisions of Section 77 of the Finance Act, 1994 for both the financial years. This order is an appealable order under Section 35 B of the Central Excise Act, 1994. This writ petition has been preferred on the ground of alleged breach of or violation of principles of natural justice. 2. Having heard counsels for both sides and looking to the facts and circumstances of the case, it appears that show-cause Notice dated 23 rd October, 2013 was given by the respondents, which was not replied, by this petitioner. Thus, there is no violation of principles of natural justice by -2- the respondents. In fact, opportunity of being heard was never availed by this petitioner despite it was offered by the respondents. 3. Looking to the Order-in-Original, dated 31st March, 2016 (Annexure 7) passed by the Commissioner of Central Excise & Service Tax, Ranchi, especially, paragraph No. 32, 34 and 35, it appears that approximately half a dozen times opportunity was given to this petitioner. Neither any reply was filed to the show cause notice nor any ground was canvassed as to which are the documents, this petitioner was in need of and which were impounded, during the search carried out by the Income Tax department. Thus, vague argument has been canvassed that petitioner was in need of some documents and therefore, he could not give reply to their Show Cause Notice before issuance of Order-in-Original. This vagueness in argument is known as “after thought argument”. 4. It appears from the facts of the case that even otherwise also, the impugned order is an appealable order under Secton 35 B of the Central Excise Act, 1944 before the Customs, Excise and Service Tax Appellate Tribunal (CESTAT), Kolkata. 5. Thus, looking to paragraph no.s 32, 34 & 35 of Order-in-Original, it appears that though opportunity of being heard was given to this petitioner, the same was never availed by this petitioner and hence, there is no violation of principles of natural justice. Petitioner was in requirement of which documents and what was the relevance of those documents for giving reply to the Show-Cause Notice issued by the respondents have also never been highlighted in any of the applications by the petitioner. The so-called applications, which are annexure 6 series, are absolutely vague in nature. No description of any of the documents has been given by the petitioner nor its importance for giving reply has been shown by this petitioner. Thus, opportunity of being heard was not availed by the petitioner and we do not want to give premium to such an action of the petitioner by entertaining this writ petition also in the light of the fact that there is an alternative efficacious remedy available with this petitioner to challenge the impugned order before Customs, Excise and Service Tax Appellate Tribunal (CESTAT), Kolkata. 6. Hence, there is no substance in this writ petition. As efficacious alternative remedy is available with this petitioner, we are not inclined to exercise jurisdiction under Article 226 of the Constitution of India for -3- checking the legality and validity of the Order-in-Original (Annexure 7) dated 31st March, 2016. 7. This writ petition is, hereby, dismissed. (D.N.Patel, A.C.J.) (Amitav K. Gupta, J.) s.m. "