Orissa High Court
M/S. Satish Ch. Das & Co vs The Commissioner Of Central ... on 21 February, 2023
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) Nos.23950 & 21602 of 2017
M/s. Satish Ch. Das & Co. .... Petitioner
(In W.P.(C) No. 23950 of 2017)
Mr. J.M. Pattanaik, Advocate
-versus-
The Commissioner of Central Excise & .... Opposite Parties
Customs, Bhubaneswar & Others
Mr. P.K. Panda, Senior Standing Counsel
for CGST(Central)
M/s. Satish Ch. Das & Co. .... Petitioner
(In W.P.(C) No. 21602 of 2017)
Mr. J.M. Pattanaik, Advocate
-versus-
The Union of India & Others .... Opposite Parties
Mr. P.K. Panda, Senior Standing Counsel
for CGST(Central)
CORAM:
THE CHIEF JUSTICE
JUSTICE M. S. RAMAN
JUDGMENT
21.02.2023
Order No.
06. 1. Both the petitions have been filed by the same Petitioner and
arise in similar set of facts. They are accordingly being disposed of
by this common judgment.
2. In W.P.(C) No. 23950 of 2017, the challenge is to the notice dated
23rd April, 2007 and letter dated 30th October, 2017 issued by the
Department asking the Petitioner to appear personally in connection
with an earlier Show Cause Notice (SCN) issued by the
Commissioner on 23rd April, 2007. That SCN was in connection
with the case of the Department regarding non-payment of service
tax by the Appellant providing 'Port Services'. It appears that no
action was taken pursuant to the above SCN issued on 23rd April,
2007 which was for the period 1st October, 2005 to 31st March, 2006.
The Petitioner therefore was under the impression that the
Department had dropped the proceedings.
3. After lapse of 10 years second impugned notice dated 30th
October, 2017 was issued to the Petitioner asking him to appear for
hearing. The Petitioner filed an application dated 9th November,
2017 before the authority expressing its inability to collect
documents after such a long lapse of time. Thereafter, the present
petition was filed in this Court. On 11th December, 2017, an interim
order was passed staying further proceeding pursuant to the
impugned notices. That interim order has continued.
4. Pursuant to the notice issued, a counter affidavit filed by the
Department where inter alia reference has been made to the
pendency in the Supreme Court of India of Civil Appeal No.1765 of
2009 (Commissioner of Central Excise, Mangalore vs. M/s.
Konkan Marine Agencies) which was the Department's appeal
against an order of the CEST Tax answering the issue in favour of
the assessee.
5. Mr. J.M. Pattanaik, learned counsel for the Petitioner points out
that the said appeal stands dismissed by the Supreme Court of India
by the order dated 11th January, 2023 a copy of which has been
enclosed with the written note submitted today in Court.
6. The Petitioner places reliance on another judgment of the
CESTAT, South Zonal Bench, Bangalore in the case of Aspinwal
and Co. Ltd. v. Commissioner of Central Excise
MANU/CB/0326/2010 answering a similar issue in favour of the
assessee. Civil Appeal No.10763 of 2017 filed against the said
judgment stands dismissed by the Supreme Court of India on 11th
January, 2023. The net result is the orders answering the issue in
favour of the Petitioner have been upheld by the Supreme Court of
India.
7. Accordingly, the impugned notice dated 23rd April, 2007 and
further letter dated 30th October, 2017 issued by the Department to
the Petitioner are hereby quashed.
8. The challenge in W.P.(C) No.21602 of 2017 is to the notice dated
18th October, 2006 and the consequent letters dated 21st/22nd
September, 2017 which is for the period 16th July, 2001 to 30th
September, 2005.
9. For the aforementioned reasons, the said two notices are also
hereby quashed.
10. Both the petitions are allowed in the above terms. No order as to
cost.
(Dr. S. Muralidhar)
Chief Justice
(M. S. Raman)
Judge
Aks
