OD–1 IN THE HIGH COURT AT CALCUTTA CONSTITUTIONAL WRIT JURISDICTION ORIGINAL SIDE WPO/1071/2024 CLIFFORD FACILITES SERVICES PRIVATE LIMITED AND ANR.

VERSUS UNION OF INDIA & ORS.

BEFORE :

THE HON’BLE JUSTICE RAJA BASU CHOWDHURY Date: 8th May, 2025 Appearance :

Mr. Pranit Bag, Adv.

Mr. Anuj Kumar Mishra, Adv.

Ms. Amani Kayan, Adv. Mr. Anousko Das, Adv. Mr. Balram Patra, Adv.

…for the petitioners Mr. Uday Shankar Bhattacharya, Adv.

Mr. Bhaskar Prosad Banerjee, Adv.

Mr. Tapan Bhanja, Adv. …for the CGST Authority The Court :- 1. Challenging the show cause notice dated 31st December, 2020 issued under the provision of Section 73(1) of the first proviso to the Finance Act, 1994 (hereinafter referred to as ‘the said Act’) whereby the respondents have proceeded to invoking the extended period, as also challenging the order in original dated 11th July, 2024 issued by the respondent no.3, the instant writ petition has been filed.

2. Mr. Bag, learned Advocate representing the petitioners by drawing attention of this Court to the showcause notice dated 31st December, 2020 would submit that the said showcause has been issued for the financial year 2015-16, 2016-17 and 2017-18 (April, 2017 to June, 2017) beyond the ordinary period of limitation by invoking the extended period.

3. According to the petitioners, the petitioners are service providers and are engaged in manpower services, security agency services and housekeeping services in various entities including several state entities such as the Government of India Press, Public Health Engineering, Satyajit Ray Film Institute, Visva-Bharati, Shantiniketan, Executive Engineer, Salt Lake, Indian Institute of Foreign Trade, Rajasthan Skill and Livelihood Development Corporation, Commanding Officer, ICGS, Kolkata, West Bengal Cooperative Bank Limited, Rail Vikas Nigam Limited etc. In ordinary course of business, the petitioners upon providing service while raising invoices had never raised such invoices by including the component of service tax and had never charged service tax from any of the entities. According to the petitioners, the petitioners are not required to pay service tax by virtue of an exemption notification being no.25/2012/ST dated 20th June, 2012. Accordingly, the petitioners from time to time had filed returns in form ST3 by disclosing therein their total income on the basis of the benefits available to the petitioners under the exemption noted hereinabove.

4. Mr. Bag by drawing attention of this Court to the show cause notice and the grounds for invocation of the extended period would submit that the only ground of invocation of the extended period is the alleged mis-declaration of correct income details in the periodical returns of the petitioners as assessee for availing the exemption notification. This, according to Mr. Bag, does not and cannot form the basis for invoking the extended period.

5. It is the petitioners’ case that the petitioners had appeared before the adjucating authority and had placed their aforesaid case but no response was filed to the show cause notice though, the notification referred to above was duly placed by the petitioners before the authority.

6. Mr. Bag would submit that the order passed by the adjudicating authority is without jurisdiction and has no basis. The showcause is also without jurisdiction. He would submit that the tests laid down by the Hon’ble Supreme Court for invoking the extended period does not stand satisfied. In support of his contention, he has placed reliance on the following judgments:-

I. Gopal Zarda Udyog & Ors. v. Commissioner of Central Excise, New Delhi reported in (2005) 8 SCC 157.

II. Escorts Limited v. Commissioner of Central Excise, Faridabad reported (2015) 9 SCC 109.

III. Phawa Chemicals Pvt. Ltd. v. Commissioner of Central Excise, Delhi reported in (2009) 4 SCC 658.

7. Reliance is also placed in the judgment delivered by the Hon’ble Supreme Court in the case of Pushpam Pharmaceuticals Company vs. Collector of Central Excise, Bo