IMPORTANT POINT
The appeal was within the extended limitation period, and the Appellate Authority erred in dismissing it as time-barred without considering the merits.

JUDGMENT :

MANISH CHOUDHURY, J.

The petitioners invoking the extra-ordinary and discretionary jurisdiction under Article 226 of the Constitution of India, has preferred the present writ petition to assail an Order-in-Original no. C. No. [15]/37/ST/ADJ/IECPL/ACD/2020-21 dated 21.03.2024 passed by the Adjudicating Authority [the respondent no. 4] and an Order–in–Appeal no. F. No. GAPPL/COM/STP/1214/2024-APPEAL-GUWAHATI/9378 dated 02.12.2024 passed by the 1st Appellate Authority, that is, the Commissioner [Appeals], Central Excise & Customs [the respondent no. 3] whereby the appeal preferred by the petitioners has been dismissed, without going into the merits, on the ground that the appeal is time-barred.

2. It is stated that the petitioner no. 1 is a partnership firm [‘the petitioner firm’, for short] having its registered office at Sivasagar, District – Sivasagar. The petitioner no. 2 is one of the partners in the petitioner firm and its managing partner. The petitioner firm is engaged in the business of execution of various contracts and trading of construction materials. For the purpose of carrying on its business, the petitioner firm had got itself registered under Section 69 of the Finance Act, 1994 [now omitted by the Central Goods & Services Tax (CGST) Act, 2017] read with Rule 4 of the Service Tax Rules, 1994 with Registration no. AABFI7196NSD001.

3. The petitioners have stated that during the Financial Years : 2014-2015 to 2017-2018, the petitioner firm had executed contract-works awarded to it by M/s Shyama Power India Limited and M/s Neccon Power & Infra Limited, as a sub-contractor. The petitioners have contended that no service tax was collected from the petitioner firm on the said account and the service tax liability was borne and paid by the main contractors, that is, M/s Shyama Power India Limited and M/s Neccon Power & Infra Limited and to that effect, certificates have also been issued by the main contractors.

4. Subsequently, the petitioner firm was served with a Demand–cum–Show Cause Notice dated 30.09.2020 by the respondent no. 4 as the empowered officer under sub-section [1] of Section 73 of the Finance Act, 1994 [‘the Finance Act’, for short] asking the petitioner firm to show cause to the Joint Commissioner, Goods & Services Tax, Dibrugarh, Assam within thirty days from the date of receipt of the notice, as to why :

[a] Service Tax of Rs. 3,60,991.00 [Rupees three lakhs sixty thousand nine hundred and ninety one] only including Ed. Cess, S&HE Cess, Krishi Kalyan Cess and Swachh Bharat Cess relating to the period 2014-15 [October – March] to Financial Year : 2017 – 2018 [April – June] should not be demanded and recovered from them under Section 73 [1] of the Finance Act, 1994 read with Section 142 [8][a], CGST Act, 2017;

[b] Interest at the appropriate rate should not be charged and realized from them under Section 75 of the Finance Act, 1994;

[c] Penalty should not be imposed on them under Section 76 of the Finance Act, 1994 for their failure to pay full Service Tax in contravention of Section 68 of the said Act read with Rule 6 of the Service Tax Rules; and

[d] Penalty should not be imposed on them under Section 78 of the Finance Act, 1994 for suppression of the fact of provision of afore-mentioned taxable services, in contravention of the provisions of Finance Act, 1994 and the Rules made thereunder with intent to evade payment of Service Tax.

5. By the Demand–cum–Show Cause Notice, the petitioner firm was further asked to produce all the relevant documents at the time of showing cause upon which it would intend to rely in support of its defence. The petitioner firm as noticee, was asked to inform in writing whether it would desire to be heard in person and/or through its authorized representative when the case would be posted for hearing. It was further mentioned that if nothing was indicated in the written reply, it would be presumed that no personal hearing was desired by the noticee and the case would be dec