2024:BHC-OS:6321 12-CEXAL-32228-2023.DOC S.R.JOSHI IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION CENTRAL EXCISE APPEAL (L) NO.32228 OF 2023 Commissioner of CGST & Central Excise ] Thane – Rural, 4^th Floor, GST Bhavan, Plot ] No.C-24, Sector-E, Bandra Kurla Complex, ]

Bandra (East), Mumbai 400 051. ] .. Appellant v/s.

Tharwani Infrastructures ] Sheet No.34, Near Hanuman Mandir, ] Kalyan Ambarnath Road, Opp: Thambi ]

Garage, Ulhasnagar 421 003. ] .. Respondents.

Digitally signed by WITH SMITA SMITA RAJNIKANT RAJNIKANT JOSHI JOSHI Date: APPELLATE SIDE CIVIL JURISDICTION

2024.04.18

21:11:37 +0530 WRIT PETITION NO.497 OF 2024 M/s. Tharwani Infrastructures ] A Proprietorship Concern ] Sheet No.34, Near Hanuman Mandir, ] Kalyan Ambarnath Road, Opp: Thambi ]

Garage, Ulhasnagar 421 003. ] .. Petitioner v/s.

1 Commissioner of CGST & Central ]

Excise, Thane Rural ] 4^th Floor, GST Bhavan, Plot No.24-C ] Sector-E, Bandra Kurla Complex, ] Bandra (East),Mumbai 400 051. ]

2 Assistant Commissioner CGST & Central ]

Excise, Division 1, Thane Rural, ] 1^st Floor, Aricia Altis, Besides APMC, ] Market, Bhoiwada, Kalyan West 421 301. ]

3 Superintendent, Division -1, Range-5, ]

1^st Floor, Aricia Altis, Besides APMC, ] Market, Kalyan Shill Road, ]

Bailbazar, Kalyan West 421 301. ]

4 Union of India ]

through its Finance Secretary ] Department of Revenue, ] Ministry of Finance, 3^rd Floor, Jeevan ] Deep Building, Sansad Marg, ]

New Delhi 110 001. ] .. Respondents.

Mr. Pradeep S. Jetly, Sr. Advocate with Mr. Sham Walve, Ms. Chandni Tanna and Mr. Prathamesh Chavan i/b. India Law Alliance, for the Petitioner.

Ms. Neeta Masurkar with Mr. Ram Ochani, for the Respondents.

_______________________

CORAM: G. S. KULKARNI &

FIRDOSH P. POONIWALLA, JJ. DATED: 8^th MARCH, 2024 _______________________

ORAL JUDGMENT (Per G. S. KULKARNI, J.):-

This Appeal by the Revenue, under Section 35-J of the Central Excise Act, 1944 (the ‘Act’) is directed against an Order dated 22^nd June, 2023 passed by the Customs, Excise and Service Tax Appellate Tribunal (the ‘Tribunal’), Mumbai Bench, whereby Central Excise Appeal No. ST/86016 of 2018 filed by the Respondent against Order-in-Original dated 15^th December, 2017, stands allowed.

2 The Revenue has urged the following substantial questions of law for consideration of this Court:-

“(a) Whether under the facts and circumstances of the case and in law, the CESTAT was correct in holding that intention to evade service tax is absent in the present case?

(b) Whether under the facts and circumstances of the case and in law, the CESTAT was correct in setting aside at invocation of extended period of limitation for issue of Show Cause Notice under proviso to sub-section (1) of Section 73 of Finance Act, 1994?

(c) Whether under the facts and circumstances of the case and in law, the CESTAT was correct in applicability of sub-section (3) of Section 73 of Finance Act,1994 without appreciating Section

73(4) of the Finance Act, 1994?

(d) Whether under the facts and circumstances of the case and in law, the CESTAT was correct in setting aside the penalties levied under Section 77 & 78 of the Finance Act, 1994?

(e) Whether under the facts and circumstances of the case and in law, the CESTAT was correct in not following its own decision in the case of Master Marine Services P. Limited reported at

2014(35) STR 79 (Tri. Mumbai)?”

3 Briefly, the facts are:-

The Respondent is engaged in providing service taxable under the category of “construction of complex service”, which had become taxable w.e.f. 1^st July, 2010. It is not in dispute that, immediately thereafter, proceedings filed before this Court in Maharashtra Chamber of Housing Industry v/s. Union of India¹, assailing such tax. On such proceedings, this Court by its Judgement and Order dated 19^th January, 2012, upheld the levy and collection of tax on the said services. However, during pendency of the proceedings, which was between the year 2010 to 19^th January, 2012, this Court had passed an Order