M/S.L.M. Hati & Co vs Union Of India And Others
2021 Latest Caselaw 8650 Ori

                  IN THE HIGH COURT OF ORISSA AT CUTTACK

                                   W.P.(C) No.2636 of 2017
            M/s.L.M. Hati & Co.                      ....          Petitioner
                                               Mr.J.M. Pattanaik, Advocate
                                       -versus-
            Union of India and others                .... Opposite Parties
                   Mr. Ch. S. Mishra, Senior Standing Counsel for the O.P.s

                        CORAM:
                        THE CHIEF JUSTICE
                        JUSTICE B. P. ROUTRAY

                                       ORDER

18.08.2021 Order No.

04. 1. This is the second round of litigation concerning the show cause notices issued to the Petitioner by the Commissioner, Central Excise, Customs & Service Tax, Bhubaneswar-1 Commissionerate on 18th October, 2006 and 23rd October, 2006.

2. It appears that the aforementioned show cause notices was challenged by the Petitioner by filing Writ Petition (Civil) No.14754/2006 in which an interim order was passed on 13th November, 2006. When the writ petition came up for hearing on 16th April, 2010, the following order was passed by this Court.

"Heard Mr. J.M. Patnaik, learned counsel for the petitioner and Mr.Mukherjee, learned Sr. Standing Counsel appearing for opposite party no.3.

The petitioner seeks to assail the demand-cum-

show cause notice dated 18.10.2006 (Annexure-3) issued by the Commissioner of Central Excise,

Customs and Service Tax, Bhubaneswar calling upon the petitioner to show cause enclosing all the documentary evidence upon which it intends to rely in support of his defence as to why it shall not be liable to pay service tax.

Mr. Patnaik, learned counsel submits that the petitioner is not liable to pay service tax as demanded in view of the clear position of law and catena of decisions of different High Courts and Supreme Court. But then, if according to the petitioner it is not liable to pay any service tax, it is open for it to file show cause before the concerned authorities highlighting his claim, enclosing all the relevant documents and also enclosing authenticated copy of the judgment passed by different Courts in support of his defence. If such a show cause is filed within a period of two weeks hence, the authorities shall consider the same in consonance with law and the ratio of the judgments and take a decision as expeditiously as possible. Till a decision is taken by opposite party no.3, no coercive action shall be taken against the petitioner to release the amount demanded."

3. Pursuant to the above order, the Petitioner submitted the reply on the show cause notice on 4th May, 2010. In the meanwhile, the above proceedings were pending, for the second time a corrigendum was issued on 14th December, 2016. Following to the said corrigendum, on 26th December 2016 a notice of personal hearing was issued to the Petitioner fixing the date and time of hearing on 11th January, 2017 at 15.30 Hrs.

4. In response thereto, the Petitioner filed an exhaustive reply on 9th February, 2017 questioning the very jurisdiction of the authorities to continue the proceedings despite pendency of

earlier writ petition. Thereafter the present writ petition was filed. When this writ petition came up for hearing on 16th February, 2017, this Court directed that further proceeding pursuant to the above notice shall remain stayed.

5. Pursuant to the notice issued in the present writ petition, a counter affidavit has been filed by the Opposite Parties inter alia seeking to explain that on account of the pendency of the matter in the Larger Bench of CESTAT, Chennai, the earlier show cause notices dated 18th October, 2006 and 23rd October, 2006 be kept in 'Call Book'. It states that the CESTAT, (Larger Bench) pronounced the order on 29th March, 2011.

6. Thereafter, it is stated that a policy decision was taken by the Government of India to adjudicate the show cause notices and accordingly a corrigendum was issued on 14th December, 2016 intimating the name and designation of the adjudicating authority to the Petitioner.

7. It was thus seen that inordinate delay in proceeding with the earlier show cause notice despite the justification for keeping them in the Call Book coming to an end with the decision of the Larger Bench decided on 29th March, 2011. Nevertheless since the Petitioner's reply to the hearing notice filed by Petitioner on 9th February, 2017 is yet to be considered, the Court issues the following directions:

(i) The aforementioned reply of the Petitioner will be considered on its merit, the Petitioner heard and the hearing date will be intimated to the Petitioner at least 10 days in advance and a reasoned order passed by the Authorized Adjudication Officer not later than 6th December, 2021.

(ii) The order shall be communicated to the Petitioner not later than 13th December, 2021.

(iii) It is open to the Petitioner if aggrieved by such order to seek appropriate remedies in accordance with law.

(iv) Till the communication of the above order, no coercive steps shall be taken against the Petitioner.

8. This order shall dispose of both the present writ petition as well as the pending writ petition, i.e. W.P.(C) No.14754/2006.

9. A copy of this order shall be placed at the instances.

10. An urgent certified copy of this order be issued as per rules.

(Dr. S. Muralidhar) Chief Justice

( B.P. Routray) Judge

B.K. Barik