Bombay High Court
L And T Hydrocarbon Engineering Ltd. And ... vs The Union Of India Through The ... on 15 July, 2024
Author: K.R. Shriram
Bench: K.R. Shriram
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
Digitally signed
by PRACHI
PRACHI PRANESH
PRANESH NANDIWADEKAR
NANDIWADEKAR
Date: 2024.07.15
19:21:59 +0530
WRIT PETITION NO.9404 OF 2019
L & T Hydrocarbon Engineering Ltd & Anr. ....Petitioners
V/s.
The Union of India & Ors. ...Respondents
----
Mr. Sriram Sridharan for petitioner.
Mr. Ram Ochani i/by Mr. Jitendra B. Mishra for respondent nos. 1, 3 & 4.
----
CORAM : K.R. SHRIRAM &
JITENDRA JAIN, JJ.
DATE : 15th JULY 2024 P.C. :
1 Mr. Ochani states that respondent no.2 has just instructed him and some time be given to take instructions and to file reply to petition.
2 On 4th January 2023, following order came to be passed :
". The learned Counsel for the Petitioners has relied upon the judgment and order passed in Petitioners' own case by the Division Bench of the High Court of Gujarat in L and T Hydrocarbon Engineering Ltd. Versus Union of India1. The learned Counsel for the Petitioners states that one investigation was launched against the Petitioners and in respect of the excise duty petition was filed in the High Court of Gujarat, and the present petition filed in this Court arises from the same investigation as regards the service tax. The learned Counsel for the Petitioners states that there is no reason why the Respondents should keep contesting this petition when they have not challenged the judgment and order dated 3 February 2022 passed by the High Court of Gujarat.
1 R/ Special Civil Application No. 11308 of 2019 dated 3 February 2022
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2. The petition is being adjourned from time to time for the Respondents to decide regarding the stand to be taken. The learned Senior Advocate for the Respondents states that the fact that the decision of the High Court of Gujarat as above has not been challenged is correct but no written instructions are received.
3. In case the Respondents are contesting the present petition, the concerned Commissioner will file an affidavit setting out the reason for doing so. If the reply affidavit is not filed within a period of two weeks from today, then it will be presumed that the Respondents are accepting the statement made by the Petitioners that the issue raised in this petition is covered by the decision of the High Court of Gujarat,and the Court will proceed to pass appropriate orders.
4. Stand over to 30 January 2023."
3 This was followed by another order dated 6 th February 2023 which reads as under :
". In the earlier order we have recorded the submissions of the Petitioners that the impugned show cause notice is based on the same facts as the show cause notice which was the In the earlier order we have recorded the submissions of the Petitioners that the impugned show cause notice is based on the same facts as the show cause notice which was the subject matter in Special Civil Applications No. 11308 of 2019 and 11208 of 2019 in respect of the same Petitioners and that the Gujarat High Court had allowed the Petition and quashed the show cause notice. The learned Counsel for the Petitioner states that the only difference between the two proceedings is that the demand involved in the show cause notice before the Gujarat High Court was in respect of Excise Duty and in the present case it is Service Tax. We had also made an enquiry with the Respondents, which is recorded in the earlier orders,that whether the Revenue had challenged the order of the Gujarat High Court to which it was categorically informed to us by the learned Counsel for Respondents, on instructions,that the Revenue has decided not to challenge the order which fact is also placed on an affidavit.
2. The matter was argued for some time on the last occasion and it was adjourned for the learned senior advocate for the Respondents to take instructions as to whether there is any factual difference or any distinguishing feature between the two.::: Uploaded on - 15/07/2024 ::: Downloaded on - 16/07/2024 12:11:39 :::
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3. The learned Counsel, on instructions of Mr. Manas Ranjan Mohanty, Principal Commissioner, Mumbai, GST (East) states that there is no difference between the two proceedings in law and facts except that the levy is under different heads, however, the Respondents would still want to contest the Petition inspite of the Gujarat High Court having ruled in Petitioners' favour and the Revenue deciding not to challenge further.
4. We find the approach of the Respondents, prima facie,surprising because it is the Revenue before the Court that is represented and not an individual officer or a department.
5. We, therefore, direct the Principal Commissioner of GST & Central Excise to file an affidavit as to why a differing stand is taken by the Revenue, and whether such course of action is justified with reference to the statutory provisions, internal circulars etc. We make it clear that the affidavit shall be filed by the Principal Commissioner and not to be delegated.
6. Stand over to 27 February 2023. To be listed under the caption "For directions"
4 Mr. Sridharan states that all respondents have been served and affidavit of service has been filed. He relies upon an affidavit of one Mr. Amit Shirke and states that respondent no.2, Additional Director General, Directorate General of Goods and Services Tax Intelligence, Chennai Zonal Unit, Chennai - 600 090 was served on 20th July 2019. 5 Despite strong opposition by Mr. Sridharan, we would grant indulgence and stand over the matter on 22 nd July 2024. We find that on 9 th November 2022, only respondent nos.1 and 3 to 7 were represented. 6 At the same time, respondent no.2 has to be put to terms because for over 5 years, respondent no.2 has not bothered to participate in these proceedings. In our view, stiff cost is necessary. ::: Uploaded on - 15/07/2024 ::: Downloaded on - 16/07/2024 12:11:39 :::
ppn 4/4 424.wp-303.20.doc 7 We direct respondent no.2 to pay a sum of Rs.1,00,000/- as
cost and this amount shall be paid before the next date to the High Court Legal Aid Fund, Account No.60045304283, IFSC-MAHB0000002, of Bank of Maharashtra, Branch- Fort, Mumbai 400 032, maintained by the High Court Legal Services Committee, Mumbai. Room No.105, 1 st Floor, PWD Building, High Court, Mumbai and to furnish the details of such cost to the High Court Legal Services Committee, Mumbai and obtain the receipt thereof physically or through Email, i.e., [email protected] which shall be the proof of such payment/deposit.
(JITENDRA JAIN, J.) (K.R. SHRIRAM, J.)
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