Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE DR. JUSTICE A.K.JAYASANKARAN NAMBIAR & THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH TUESDAY, THE 7TH DAY OF NOVEMBER 2023 / 16TH KARTHIKA, 1945 WA NO. 1918 OF 2023 AGAINST THE JUDGMENT DATED 18.10.2023 WP(C) 34293/2023 OF HIGH COURT OF KERALA APPELLANT/PETITIONER:
M/S. BHARAT SANCHAR NIGAM LIMITED O/O THE CHIEF GENERAL MANAGER-TELECOM, KERALA CIRCLE, VIKAS BHAVAN, PMG JUNCTION TRIVANDRUM REPRESENTED BY DEPUTY GENERAL MANAGER (FINANCE) MS. RETHIRANI A, PIN - 695033 BY ADV S.K.DEVI RESPONDENTS/RESPONDENTS:
1 THE COMMISSIONER, O/O THE COMMISSIONER, CENTRAL GST AND CENTRAL EXCISE, P. B. NO. 13, GST BHAVAN, PRESS CLUB ROAD, THIRUVANANTHAPURAM, PIN - 695001 2 THE CENTRAL BOARD OF INDIRECT TAXES AND CUSTOMS 47B, NORTH BLOCK, NEW DELHI REPRESENTED BY ITS CHAIRMAN, PIN - 110001 3 MINISTRY OF FINANCE, DEPARTMENT OF REVENUE, NORTH BLOCK, NEW DELHI, REPRESENTED BY ITS SECRETARY, PIN – 110001 SC SRI. SREELAL N. WARRIER THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 07.11.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
W.A.No.1918 of 2023 -:2:- J U D G M E N T Dr. A.K.Jayasankaran Nambiar, J.
The appellant before us is the petitioner in W.P.(C).No.34293 of 2023 and is aggrieved by the judgment dated 18.10.2023 of the learned Single Judge in the writ petition.
2.
The writ petition was filed seeking to quash Ext.P1 order in original that was passed by the Commissioner of Central Excise and Central GST by which a demand for an amount of ₹23,12,96,574/-, ₹7,58,113/-, ₹1,45,322/- together with interest and penalty thereon was confirmed against the appellant towards differential service tax due from it for the period from October, 2016 to June, 2017. The challenge in the writ petition to Ext.P1 order was premised primarily on the contention that while the appellant company, which is a public sector undertaking, had furnished a detailed reply to the show cause notice issued by the respondent, contenting inter alia that the invocation of the larger period of limitation against it was not warranted, the adjudicating authority while passing Ext.P1 order had not adverted to the contentions of the appellant in relation to the
W.A.No.1918 of 2023 -:3:- limitation aspect. It is the submission of the learned Senior Counsel for the appellant that, had the limitation aspect been considered in its true perspective, then the entire demand, if not a substantial portion thereof, would have been obliterated as the demand would be hit by limitation.
3.
The learned Single Judge who considered the writ petition, dismissed the same at the admission stage on finding that there was no reason warranting interference by this Court with an adjudication order. The learned Judge therefore, relegated the appellant to its alternative remedy of filing an appeal against Ext.P1 before the first appellate authority under the statute.
4.
When this appeal was taken up for admission, we found force in the submission of the learned Senior counsel Smt. S.K. Devi, on behalf of the appellant, that the aspect of limitation which was crucial to sustain the demand against the appellant had not been considered by the adjudicating authority despite a detailed reply having been furnished to the show cause notice covering this aspect as is evident from the recording of the defence submission in Ext.P1 order itself at paragraph '9' therein. We find that notwithstanding the detailed objection furnished by the appellant, to the invocation of the
W.A.No.1918 of 2023 -:4:- larger period of limitation against it, the adjudicating authority while passing Ext.P1 order merely reiterated the allegations in the show cause notice that was issued to the appellant, without discussing the case laws or the points raised by the appellant in objection to the invocation of the larger period of limitation against it. A mere reading of paragraphs 16 and 17 of Ext.P1 order would reveal that they are mere mechanical reproductions of the corresponding portions of the show cause notice issued to the appellant and do not discuss the objections and decisions put forward/relied upon by the appellant on the issue of limitation. We are of the view that in passing Ext.P1 order, there has been a patent non application of mind by the adjudicating authority on this crucial aspect pertaining to the appellant's case and hence the adjudication order cannot be upheld in these proceedings.
In view of the discussions above, while under normal circumstances we would have hesitated from interfering with the judgment of the learned Single Judge that relegated the appellant to its alternative remedy of filing an appeal against Ext.P1 order, in the peculiar circumstances of this case as noticed above, we are of the view that the matter requires a fresh consideration at the hands of the
W.A.No.1918 of 2023 -:5:- original authority. We therefore, allow this writ appeal by setting aside the impugned judgment of the learned Single Judge as also setting aside Ext.P1 order that was impugned in the writ petition and allowing the writ petition to that extent. The respondent adjudicating authority shall now proceed to adjudicate the show cause notice afresh after considering the plea of limitation put forth by the appellant in the reply to the show cause notice as noticed by the adjudicating authority itself in Ext.P1 order that has now been quashed. The adjudicating authority shall pass fresh reasoned orders in the matter after hearing the appellant within a period of two months from the date of receipt of a copy of this judgment.
Sd/- DR. A.K.JAYASANKARAN NAMBIAR JUDGE sd/- DR. KAUSER EDAPPAGATH JUDGE kp