Periasamy Balasubramani vs. The Assistant Commissioner Of CGST And Central Excise
Held
The Court allowed the writ petition and set aside the order-in-original dated 31.01.2022 passed by the first respondent. The Court reasoned that the department passed the final order on 31.01.2022, even though the petitioner had filed a writ petition challenging the show cause notice and the relevant notification, and an interim stay had been granted. Crucially, the department failed to inform the Division Bench of the Principal Seat about the passing of this order when the batch of writ petitions was taken up for hearing on 30.11.2022. This failure to disclose and the passing of the order prior to the disposal of the writ petition rendered the order liable to be set aside. The Court directed both the petitioner and the respondents to comply with the directions previously issued by the Division Bench of the Principal Seat in W.P.(MD)No.2127 of 2022 dated 30.11.2022, which included providing the petitioner with an opportunity to file a reply and the respondents to pass appropriate orders on merits. The ratio decidendi is that an order passed in contravention of an interim order or without disclosing its existence to a higher court hearing related matters is unsustainable.
Facts
The petitioner, a Civil Contractor, sought exemption for government constructions based on Notification No. 25/2012-ST. The department, citing Notification No. 6/2015-ST, issued a show cause notice on 31.12.2020, proposing service tax payment. The petitioner filed a writ petition (W.P.(MD)No.2127 of 2022) on 25.01.2022 challenging the notification and the show cause notice. This writ petition was listed for hearing on 03.02.2022, and an interim stay was granted. However, the department passed an order-in-original on 31.01.2022, after the writ petition was filed but before its hearing. The petitioner's grievance in the present writ petition is that the order-in-original was passed without an opportunity to be heard and that the department failed to inform the Division Bench of the Principal Seat about this order when the batch of writ petitions, including the petitioner's, were heard on 30.11.2022.
Key Issues
1. Whether the order-in-original dated 31.01.2022, passed by the first respondent, is liable to be set aside for being passed without providing an adequate opportunity of hearing to the petitioner, contrary to the directions issued by the Division Bench of the Principal Seat in a batch of writ petitions including W.P.(MD)No.2127 of 2022 dated 30.11.2022? Petitioner's contentions: The petitioner argued that the order-in-original was passed without providing an opportunity to be heard. Furthermore, the department failed to disclose the passing of this order to the Division Bench of the Principal Seat when the earlier writ petition and a batch of similar petitions were heard and disposed of on 30.11.2022. The petitioner contended that they should be afforded the opportunity as directed by the Court in the earlier order. Respondents' contentions: The respondents submitted that the petitioner has an alternative remedy of appeal against the order dated 31.01.2022. They also contended that an enquiry was conducted, and the petitioner participated and submitted an explanation, thus refuting the claim that no opportunity was provided.
Sections Cited
Section 35F of the Central Excise Act, 1944, Finance Act, 1994
AI-generated summary — verify with the full judgment below
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 12.04.2023 CORAM: THE HONOURABLE MR.JUSTICE B.PUGALENDHI and W.M.P.(MD)No.7494 of 2023 Periasamy Balasubramani ... Petitioner versus
The Assistant Commissioner of CGST and Central Excise, Dindigul II Division, No.5, S.I.Complex, Race Course Road, Dindigul – 624 001. 2. The Commissioner of CGST & Central Excise, Central Revenue Buildings, Bibikulam, Madurai – 625 002. 3. The Designated Committee, Sabka Vishwas (Legacy Dispute Resolution) Scheme 2019, Office of the Commissioner of CGST & 1/10 https://www.mhc.tn.gov.in/judis Central Excise, Central Revenue Buildings, Bibikulam, Madurai – 625 002. 4. The Superintendent of CGST & Central Excise, Theni Range, No.5A-1, First Floor, Vasavi Colony, Palanichettipatti, Theni – 625 531. 5. The Commissioner of CGST & Central Excise (Appeals) Coimbatore, Circuit Office at Madurai, Central Revenue Buildings, Bibikulam, Madurai – 625 002. ... Respondents Writ Petition filed under Article 226 of the Constitution of India, seeki
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