M/S. Syed Mustafa Shareef vs. The Joint Commissioner (In-Situ) Of Central Tax

Facts

The petitioner, M/s. Syed Mustafa Shareef, filed a writ petition challenging an Order-in-Original dated March 6, 2023, passed by the Joint Commissioner of Central Tax. This order confirmed demands of Rs. 10,38,311.00 and Rs. 1,69,767/- as service tax for the periods April 2016 to March 2017 and April 2017 to June 2017, respectively. The order was passed under Chapter V of the Finance Act, 1994, invoking the extended period of limitation under the proviso to Section 73(1). The petitioner contended that the order was passed beyond the period of limitation, without jurisdiction, and in violation of principles of natural justice. The petitioner also argued that the adjudicating authority was not the officer who issued the show cause notice and that the order was not passed within the time prescribed by a Central Board of Excise and Customs circular dated March 10, 2017.

Held

The High Court held that the issue of whether the impugned order was beyond the period of limitation required adjudication. Given this, the Court was of the view that the petitioner should avail the alternative remedy of appeal as provided under Section 95 of the Finance Act, 1994, read with Section 35F of the Central Excise Act, 1944. The Court clarified that if the appeal is preferred within thirty days from the date of the order, it shall be considered by the appellate authority in accordance with law. All contentions raised by the petitioner were kept open for consideration by the appellate authority. The Court did not decide on the merits of the petitioner's claims regarding limitation, jurisdiction, or violation of natural justice.

Key Issues

1. Whether the impugned Order-in-Original No. 05/2023-Adjn (ST), dated 06-03-2023, passed by the Joint Commissioner of Central Tax, is beyond the period of limitation prescribed under Section 73(1) of the Finance Act, 1994, thereby rendering it without jurisdiction. The petitioner argued that the extended period of limitation under the proviso to Section 73(1) was not applicable and that for a majority of the period, the order was passed even beyond the extended period. The petitioner also contended that the order was not passed within the time prescribed by the Central Board of Excise and Customs Circular dated 10-03-2017 and that the adjudicating officer was not the one who issued the show cause notice. The respondents did not record specific arguments on the limitation issue in the judgment, but the Court noted that the issue of limitation may require adjudication.