Clipped from: https://taxguru.in/service-tax/hc-quashes-service-tax-notices-issued-lapse-10-years.html
Satish Ch. Das & Co. Vs Commissioner of Central Excise & Customs (Orissa High Court)
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 of2009 (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 Aspinwaland 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 here by quashed.
10. Both the petitions are allowed in the above terms. No order as to cost.