The Commissioner CGST And Central Excise Having Its Ofice At Central Revenue Building (Annexe) vs. M/S Bhola Sharan Singh
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The Commissioner of CGST and Central Excise and the Superintendent CGST and Central Excise (collectively, the Petitioner/Revenue) filed a Civil Review No. 144 of 2021 seeking to review an order dated 08.07.2021 passed by a Co-ordinate Bench in Civil Writ Jurisdiction Case (C.W.J.C.) No. 11345 of 2021. In the original writ petition, M/s Bhola Sharan Singh (the Opposite Party/Assessee) had prayed for quashing a demand-cum-show cause notice dated 25.04.2018 and an order dated 16.10.2020, which imposed Service Tax, interest, and penalty. The writ petition was filed in April 2021 and was listed for the first time on 08.07.2021, on which date the Co-ordinate Bench disposed of the matter without allowing the Petitioner/Revenue to file a counter affidavit. This led to the filing of the present Civil Review petition.
Held
The Court allowed the Civil Review petition. The primary ground for allowing the review was that the Petitioner/Revenue was denied an opportunity to file a counter affidavit in the original writ petition (C.W.J.C. No. 11345 of 2021). The Court found that the Co-ordinate Bench had decided the main matter on the first date of hearing, which prevented the Petitioner/Revenue from presenting their defense. The Court held that this procedural lapse constituted a sufficient ground to recall the order dated 08.07.2021. Consequently, the order dated 08.07.2021 passed in C.W.J.C. No. 11345 of 2021 was recalled, and the said writ petition was restored to the file. The Court directed the Registry to list C.W.J.C. No. 11345 of 2021 before the concerned roster Bench for further proceedings. No specific findings were made on the merits of the original writ petition concerning the Service Tax demand, interest, or penalty.
Key Issues
1. Whether the Co-ordinate Bench erred in disposing of C.W.J.C. No. 11345 of 2021 on the first date of hearing without providing the Petitioner/Revenue an opportunity to file a counter affidavit, thereby violating principles of natural justice? Petitioner/Revenue's Contention: The Petitioner/Revenue argued that the Co-ordinate Bench's decision to dispose of the writ petition on the very first date of hearing, without granting them an opportunity to file a counter affidavit, was a procedural irregularity that prejudiced their case. They contended that this action contravened the principles of natural justice and fair play, necessitating a review of the order. Opposite Party/Assessee's Contention: The judgment does not record any specific arguments made by the Opposite Party/Assessee in the Civil Review petition. However, their original writ petition sought to quash the demand-cum-show cause notice and the subsequent order imposing Service Tax, interest, and penalty, citing non-consideration of written submissions, exemption notifications, and constitutional provisions.
Sections Cited
None explicitly discussed in the context of the review, but the original writ petition concerned Service Tax, interest, and penalty.
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Cause title — parties, addresses and appearances
ORAL JUDGMENT (Per: HONOURABLE MR. JUSTICE P. B. BAJANTHRI) Date : 19-04-2024 Present Civil Review is presented by the Central Excise Department to review the order dated 08.07.2021 passed in C.W.J.C. No. 11345 of 2021. 2. Respondent M/s Bhola Sharan Singh has prayed in the writ petition as under:
“i) the demand cum show cause notice dated 25.04.2018 (as contained in Annexure-3) issued by the respondent no.1 proposing levy of 2/4 Service Tax, interest and penalty be quashed. (ii) the order dated 16.10.2020 (as contained in Annexure -5) passed by the respondent no.1 imposing Service Tax, interest and penalty without consideration of the written submissions, the exemption notification issued by the Central Government on the gross value of the contract and also Article 366 (29Ab) read with Entry 54 of List II of the Constitution of India be quashed. (iii) the order dated 16.10.2020 (as contained in Annexure-5) passed by the respondent no.1 imposing Service Tax, Interest and penalty without consideration of the written submissions and the documents filed along therewith run counter to the settled principles of natural justice and fair play in action and as such is wholly illegal and without juri iction? (iv) for granting any other relief(s) to which the petitioner is otherwise found entitled to.”
The writ petition was presented in the month of April, 2021. For the first time, C.W.J.C. No. 11345 of 2021 was listed on 08.07.2021 and on the same day, the Co-ordinate 3/4 Bench proceeded to dispose of the aforementioned petition whereby review petitioners have been denied an opportunity of filing counter affidavit. Thus, the present Civil Review has been filed. Service of notice in the present Civil Review has been taken note of on 29.03.2024 and the following order was passed:- “Service of notice to the respondent is completed in view of the fact that the concerned respondent’s wife is stated to have received the notice.
In order to give one more opportunity, re-list this matter on 15.04.2024.”
Today, none appears, hence we are compelled to decide the Civil Review petition.
Having regard to the aforementioned dates and events and the fact that review petitioners have not been provided opportunity of filing counter affidavit in C.W.J.C. No. 11345 of 2021 and the fact that Co-ordinate Bench at once in the first date of hearing decided the main matter. Therefore, review petitioners have made out a case so as to recall the order of the Co-ordinate Bench dated 08.07.2021 passed in C.W.J.C. No. 11345 of 2021 and it is recalled. C.W.J.C. No. 11345 of 2021 4/4 stands restored on the file. Registry is hereby directed to list the C.W.J.C. No. 11345 of 2021 before the concerned roster Bench.
Accordingly, Civil Review No. 144 of 2021 stands allowed. Pending I.A., if any, stands disposed of in the light of deciding the present Civil Review No. 144 of 2021. Manish/- (P. B. Bajanthri, J) ( Alok Kumar Pandey, J) AFR/NAFR N.A.F.R CAV DATE N.A Uploading Date 22.04.2024 Transmission Date N.A
Reproduced from the public record of the Patna High Court. Verify against the court's own copy before relying on it. Income tax judgments are on bharattax.net.