Siemens Construction Corporation vs Principal Commissioner Of Cgst And … on 29 July, 2026

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    Patna High Court – Orders

    Siemens Construction Corporation vs Principal Commissioner Of Cgst And … on 29 July, 2026

    Author: Alok Kumar Sinha

    Bench: Rajeev Ranjan Prasad, Alok Kumar Sinha

                           IN THE HIGH COURT OF JUDICATURE AT PATNA
                                      Civil Writ Jurisdiction Case No.5828 of 2024
                      ======================================================
                      Siemens Construction Corporation a partnership firm having its office at 21
                      IAS Colony, Kidwaipuri, District Patna 800001, Bihar through its partner
                      Rakesh Ranjan (Male, aged about 50 Years) son of Kameshwar Sharma
                      resident of B-9, Abhiyanta Nagar, P.O.- Ashiana Nagar, Ashiana Nagar,
                      District Patna 800025, Bihar.
    
                                                                                ... ... Petitioner/s
                                                      Versus
                1.    Principal Commissioner of CGST and Central Excise having its office at
                      Central Revenue Building, (Annexe), Bir Chand Patel Path, Patna 800001.
                2.    Commissioner of CGST and Central Excise, having its office at Central
                      Revenue Building, (Annexe), Bir Chand Patel Path, Patna.
                                                                             ... ... Respondent/s
                      Appearance :
                      For the Petitioner/s   :        Mr.D.V.Pathy, Sr. Advocate
                                                      Mr.Sadashiv Tiwari, Advocate
                                                      Mr. Hiresh Karan, Advocate
                                                      Ms. Shivani Dewalla, Advocate
                      For the Respondent/s   :        Dr. KN.Singh, ASG
                                                      Mr. Anshuman Singh, Sr.SC, CGST & CX
                                                      Mr. Devansh Shankar, Advocate
                                                      Mr. Prabhat Kumar Singh, JC to ASC
                                                      Mr. Shivaditya Dhari Sinha, Advocate
    
                      ======================================================
    
                      CORAM: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD
                            and
                            HONOURABLE MR. JUSTICE ALOK KUMAR SINHA
                                         ORAL ORDER
    
                      (Per: HONOURABLE MR. JUSTICE ALOK KUMAR SINHA)
    
    
    20   29-07-2026

    Heard Mr. D.V.Pathy, learned Senior Counsel for the

    petitioner and Mr. Anshuman Singh, learned Sr. Standing

    SPONSORED

    Counsel for CGST & CX.

    2. The petitioner, in the present writ case, has

    prayed for the following reliefs:

    “i) The demand cum show cause notice
    dated 2 PA issued 24.04.2019 (as contained
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    in Annexure-P by the respondent no. 2
    proposing levy of Service Tax, interest and
    penalty without a pre-show cause
    consultation as No.1053/02/2017 per Master
    Circular CS dated 10.03.2017 issued by the
    Central Board of Excise and Customs and
    subsequently clarified by Circular dated
    19.11.2020 be set aside quashed.

    ii) The order dated 04.01.2024 (as
    contained in Annexure P 4) passed by the
    respondent no. 1 imposing Service Tax,
    interest and penalty without consideration of
    the written submissions, the exemption
    Notification No.25/2012 – Service Tax dated
    20.06.2012 issued by the Central
    Government; Service Tax (Determination of
    Value) Rules, 2006; Notification No. 30/2012
    Service Tax dated 20.06.2012 and in
    violation of Article 366 (29Ab) read with
    Entry 54 of List II of the Constitution of
    India on the gross value of the contract as
    per Form 26AS and in contravention to
    Section 102 of the Finance Act inserted by
    the Finance Act, 2016 only on ground that
    the agreement was entered into after
    31.03.2015 being wholly without jurisdiction
    be set aside and quashed.

    iii) The order dated 04.01.2024 (as
    contained in Annexure -P 4) passed by the
    respondent no. 1 imposing Service Tax,
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    Interest and Penalty without consideration of
    the written submissions, the relevant
    notifications and the documents filed along
    therewith run counter to the settled
    principles of natural justice and fair play in
    action and as such is wholly illegal and
    without jurisdiction?”

    3. Although the writ petition has been instituted

    seeking several reliefs, during the course of hearing, the learned

    Senior Counsel for the petitioner, at the very outset, has

    confined this writ application only to seeking relief, as

    contained in the prayer no.(ii) of the writ application, whereby

    the petitioner has challenged the determination imposing service

    tax, interest and penalty, contained in the order dated 04.01.2024

    (Annexure-P-4) on the ground that the same has not been

    determined in accordance with the provisions contained in the

    Service Tax (Determination of Value) Rules, 2006 and is also

    not in accordance with Article 366 (29A)(b) of the Constitution

    of India. The impugned order dated 04.01.2024 has also been

    questioned for not applying/following the Notification No.

    30/2012-Service Tax dated 20.06.2012, which provides for

    service tax to be paid in equal proportion by the person

    providing the service and the person receiving the service.

    4. Since the challenge to the impugned order dated
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    04.01.2024 (Annexure-P-4) has been confined to the grounds as

    stated in the above-mentioned paragraph, therefore, for the

    purpose of adjudication of this case, submissions made by the

    parties confined to the grounds of challenge, are only being

    taken into consideration.

                  SUBMISSIONS                    ON           BEHALF   OF   THE
              PETITIONER:
    
    

    5. Learned Senior Counsel for the petitioner submitted

    that the petitioner is a partnership firm engaged in the execution

    of works contracts for different Government Departments and

    Government authorities. In the ordinary course of its business,

    the petitioner entered into several work contracts with different

    Government agencies, including Bihar Medical Services and

    Infrastructure Corporation Ltd., IRCON International Ltd. and

    NHPC Ltd., for construction of public infrastructure.It was

    submitted that one such agreement dated 17.09.2015 was

    executed with Bihar Medical Services and Infrastructure

    Corporation Ltd.(Annexure: P/1) for construction of a Central

    Library, Emergency Ward, Girls’ Hostel, Lecture Theatres and

    Model Record Room at Anugrah Narayan Magadh Medical

    College and Hospital, Gaya.

    6. Learned counsel further submitted that the foundation

    of the show cause notice was the receipts reflected in Form 26
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    AS, on the basis whereof it was alleged that the petitioner had

    received consideration towards execution of works contracts

    without payment of Service Tax. According to the petitioner,

    the respondent authorities committed a fundamental error in

    treating the gross figures reflected in Form 26AS as the basis for

    determining Service Tax liability.

    7. Learned counsel further submitted that

    respondent no.1 has erred in levying Service Tax on the gross

    value of the works contract without following Rule 2A of the

    Service Tax (Determination of Value) Rules, 2006 (Annexure:

    P/10). Learned counsel submitted that Rule 2A specifically

    provides the manner in which the service component of a works

    contract is to be determined by excluding the value of property

    in goods transferred during execution of the works contract. The

    adjudicating authority, however, ignored the statutory

    mechanism and proceeded to levy tax on the entire contract

    value reflected in Form 26AS, which is impermissible in law.

    It was also contended that the impugned order is

    contrary to Article 366(29A)(b) of the Constitution of India.

    Learned counsel submitted that the constitutional scheme

    recognizes the transfer of property in goods involved in

    execution of a works contract as a deemed sale liable to tax
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    under the State enactments governing Value Added Tax.

    Consequently, the material component of the works contract

    could never have formed part of the taxable service for the

    purposes of Service Tax. The respondent authorities, however,

    have subjected the entire gross value of the contract to Service

    Tax without excluding the value attributable to transfer of

    property in goods, thereby travelling beyond the constitutional

    limitations governing taxation of works contracts.

    8. Learned counsel further submitted that

    Notification No.30/2012-Service Tax dated 20.06.2012

    (Annexure: P/11) specifically apportions the liability to pay

    Service Tax between the service provider and the service

    recipient in specified proportions. The respondent authorities,

    however, ignored the said notification and fastened the entire tax

    liability upon the petitioner alone. According to learned counsel,

    the impugned order is, therefore, contrary not only to the

    statutory notifications but also to the binding circulars issued by

    the Central Board.

    9. Specific averments to the aforesaid effect have

    been pleaded by the petitioner in para-24, 25, 26, 27, 29 and

    30 of the writ application, which are reproduced hereinbelow

    for needful:

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    “24. That the petitioner states that Service
    Tax (Determination of Value) Rules, 2006
    provide for the manner in which the service
    portion in the execution of the works contract
    is to determined. Rule 2A of the Rule provide
    that value of service portion in the execution of
    the works contract shall be equivalent to the
    gross amount charged for the works contract is
    reduced by the value of property in goods
    transferred in the execution of the said works
    contract. Rule 2A (iii) of the Rule inter-alia
    provide that where the value has not been
    determined under clause (i), the person liable
    to pay tax on the service portion involved in
    the execution of the works contract shall
    determine the service tax in respect of works
    contract entered into execution works contract
    at the rate of 40% of the total amount charged
    for the works contract. In cases of
    maintenance and repair service tax is to be
    paid only on 70% of the total amount charged
    for the works contract.

    25. That the Notification No. 30/2012
    Service Tax also provide that service tax is to
    be paid in equal proportions by the person
    providing service and the person receiving the
    service.

    26. That the petitioner states that in terms of
    the Service Tax (Determination of Value) Rules
    Service Tax is to be paid only on the 40% of
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    the amount charged for the works contract.

    Needless to say, that this rule confirms to
    Article 366 (29 (ab) of the Constitution of
    India by allowing necessary direction on
    account of transfer of property in goods in the
    execution of the works contract. The
    Notification No. 30/2012 dated 20.06.2012 fix
    the liability both on the service provider and
    the recipient of taxable service in equivalent
    proportions.

    27. That the petitioner submits that the
    respondent no.1 in passing the order brought
    to tax the gross value of the works contract to
    tax in his hands only. The petitioner submits
    that the respondent no.1 was rather obliged to
    levy service tax only on the value of transfer of
    property in goods in the execution of the works
    contract not only in accordance with the
    Determination of Value Rules but also in
    accordance with Article 366 (29) (ab) of the
    Constitution of India. Further the respondent
    no.1 was also under an obligation to demand
    only 50% of the service tax payable by the
    petitioner in accordance with the notification
    issued by the Government of India. The
    petitioner submits that the respondent no.1 in
    passing the order did not allow the deduction
    statutorily required to be deducted and levied
    tax equivalent 100% of the gross amount of
    service tax paid contrary to the notification.
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    The petitioner submits that the notification
    having been issued by the Government of India
    was binding on the respondent no.1 The
    petitioner submits that therefore, on both the
    counts the order of the respondent no.1 is
    illegal and without jurisdiction.

    29. That the petitioner may at this stage
    state that the contract executed constitute use
    of material and also labour. The petitioner
    states that the use of material fall under the
    description of transfer of property in goods
    and is liable to Tax under the VAT Act and its
    only the labour forming part of a Service
    component is liable to Tax under the Service
    Tax Act
    . The petitioner submits that in any
    view of the matter the gross value of the
    contract cannot form part of Service
    particularly in view of the fact that no Service
    Tax can be levied on transfer of property in
    goods in the execution of works contract and
    that the same only subject to levy of Tax under
    the State Legislation namely, the VAT Act.

    30. That the petitioner states that Article 366
    (29Ab)
    of the Constitution of India in clear
    term provide that “Tax on the sale or purchase
    of goods” includes a Tax on the transfer of
    property in goods (whether as goods or in
    some other form) involved in the execution of
    works contract. The petitioner submits that in
    view of the contemplation is made in Article
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    366 (29Ab) of the Constitution of India it is
    now possible for the State to dissect the
    transaction between the sale of material and
    supply of labour. The petitioner submits that in
    view of the definition of sale in this Article and
    also the VAT. Act the material being
    transferred during the execution of the works
    contract is liable to Tax only under the Value
    Added Tax. The petitioner submits that
    therefore, the respondent no. 1 is in error in
    bringing to Tax the gross value of the contract
    the levy of Service Tax is wholly illegal and
    without jurisdiction. The same on this ground
    alone, merit to be set aside and quashed.”

    10. On the aforesaid grounds, learned senior

    counsel submitted that the order dated 04.01.2024 is wholly

    unsustainable in law and deserves to be quashed.

    SUBMISSIONS ON BEHALF OF RESPONDENTS:

    11. Per Contra, learned counsel appearing for the

    respondents raised a preliminary objection regarding the

    maintainability of the writ petition. It was submitted that against

    the adjudication order dated 04.01.2024, an efficacious statutory

    remedy of appeal was available under Section 86 of the Finance

    Act, 1994 before the Customs, Excise and Service Tax Appellate

    Tribunal (CESTAT). Without availing the said statutory remedy,
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    the petitioner had directly invoked the extraordinary jurisdiction

    of this Court under Article 226 of the Constitution of India.

    Learned counsel submitted that where an effective statutory

    remedy exists, the writ jurisdiction ought not to be invoked

    except in exceptional circumstances. It was accordingly

    submitted that the writ petition is not maintainable and is liable

    to be dismissed on the ground of availability of an alternative

    statutory remedy.

    12. Learned counsel appearing for the respondents

    also defended the impugned order dated 04.01.2024, on merit,

    by contending that it had been passed after due consideration of

    the written submissions, arguments, payment certificates and

    other documents produced by the petitioner and was/is fully in

    consonance with the provisions of Finance Act, 1994; Service

    Tax (Determination of Value) Rules, 2006; Notification

    No.30/2012-service tax dated 20.06.2012 and all other

    applicable notifications and circulars.

    Responding to the averments contained in para-24, 25,

    26, 27, 29 and 30 of the writ application, the respondents in par-

    14 and 15 of the counter affidavit replied as follows:-

    “14. That in the light of the submissions
    made under Paragraph Nos.

    24,26,27,29,30,31 and 37 of the Writ
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    Petition, it is humbly stated that the order
    dated 04.01.2024 has been passed after due
    consideration of written submission of the
    petitioner and supporting documents i.e.,
    agreements/payment receipts etc., and in
    accordance with the provisions and
    restrictions/limitations of the notifications.
    The order is completely in consonance with
    the provisions of the Finance Act, 1994 and
    Rules /Notifications/Circulars made there
    under. All the applicable provisions of
    Act/Rules/Notifications/Circulars have been
    adhered and Findings”.

    15. That in the view of the submissions made
    under Paragraph No.25 of the Writ Petition,
    it is humbly stated that the Notification
    no.30/2012-Service Tax which is related to
    abatement under Reverse Charge
    Mechanism (RCM) is applicable subject to
    the condition that the service provider must
    be either proprietorship firm or partnership
    firm. In the instant case, the petitioner is a
    private limited company and hence, reverse
    charge mechanism vide Notification
    no.30/2012-Service Tax is not applicable for
    the services rendered by the petitioner.”

    13. Learned senior counsel for the petitioner by way of

    rejoinder, clarified that the description of the petitioner as a
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    “Private Company Limited” in the cause title and the

    accompanying affidavit was an inadvertent mistake. It was

    pointed out that para-3 of the writ petition correctly describes

    the petitioner as a partnership firm. According to the petitioner,

    once such an error is corrected, the petitioner would also be

    entitled to the benefit of Notification No.30/2012-Service Tax

    dated 20.06.2012 relating to reverse charge mechanism.

    FINDINGs:

    14. Having heard learned counsels appearing on

    behalf of the parties at length and upon perusal of the pleadings,

    the Order-in-Original dated 04.01.2024, the statutory

    notifications relied upon by the parties, and the materials

    brought on record, this Court proceeds to examine the

    controversy.

    15. At the outset, the preliminary objection raised

    by the respondents regarding availability of an alternative

    remedy under Section 86 of the Finance Act, 1994 deserves

    consideration. It is true that ordinarily this Court, in exercise of

    jurisdiction under Article 226 of the Constitution of India,

    would be slow in entertaining a writ petition where a statutory

    appellate remedy is available. However, the rule regarding

    alternative remedy is a rule of self-imposed restraint and not one
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    of jurisdiction. Where the challenge goes to the very manner in

    which the adjudicating authority has exercised jurisdiction,

    where relevant statutory provisions and binding notifications are

    alleged to have been ignored, or where the order ex facie suffers

    from non-consideration of material issues having a direct

    bearing on tax liability, the existence of an alternative remedy

    would not operate as an absolute bar.

    16. In the present case, the petitioner does not

    merely dispute the quantification of demand. The challenge

    proceeds on the foundation that while determining the liability,

    the adjudicating authority failed to properly examine the

    valuation mechanism applicable to works contracts, the effect of

    Notification No. 30/2012-ST, and the constitutional limitation

    flowing from Article 366(29A)(b) of the Constitution as

    explained by the Constitution Bench judgments of the Hon’ble

    Supreme Court. The controversy, therefore, is not confined to a

    mere arithmetical determination of tax but concerns the very

    basis upon which the liability has been assessed. This Court is,

    therefore, of the opinion that the writ petition cannot be rejected

    solely on the ground of availability of an alternative remedy.

    17. This Court further finds substance in the

    grievance of the petitioner that the adjudicating authority has
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    not adequately addressed the issue relating to the valuation of

    works contracts. It is well settled that after the constitutional

    amendment embodied in Article 366(29A), a works contract is a

    composite contract involving both transfer of property in goods

    and rendition of services. The petitioner specifically contended

    that service tax could be levied only upon the service element of

    the contract and not upon the gross contract value. It further

    relied upon Rule 2A of the Service Tax (Determination of Value)

    Rules, 2006 and the applicable abatements and valuation

    provisions. None of these contentions, as averred in the writ

    application have been denied or disputed in the counter affidavit

    by the Respondents. For immediate reference, Rule 2A is

    reproduced hereinbelow for needful:-

    “2A. Determination of value of service
    portion in the execution of a works
    contract.-

    Subject to the provisions of section 67, the
    value of service portion in the execution of
    a works contract, referred to in clause (h)
    of section 66E of the Act, shall be
    determined in the following manner,
    namely:-

    (1) Value of service portion in the
    execution of a works contract shall be
    equivalent to the gross amount charged for
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    the works contract less the value of
    property in goods transferred in the
    execution of the said works contract.

    Explanation.- For the purposes of this
    clause,-

    (a) gross amount charged for the works
    contract shall not include value added tax
    or sales tax, as the case may be, paid or
    payable, if any, on transfer of property in
    goods involved in the executive of the said
    works contract;

    (b) value of works contract service shall
    include, –

    (i) labour charges for execution of the
    works;

    (ii) amount paid to a sub-contractor for
    labour and services;

    (iii) charges for planning, designing and
    architect’s fees;

    (iv) charges for obtaining on hire or
    otherwise, machinery and tools used for
    the execution of the works contract;

    (v) cost of consumables such as water,
    electricity, fuel used in the execution of the
    works contract;

    (vi) cost of establishment of the contractor
    relatable to supply of labour and services;

    (vii) other similar expenses relatable to
    supply of labour and services; and

    (viii) profit earned by the service provider
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    relatable to supply of labour and services;

    (c) Where value added tax or sales tax has
    been paid or payable on the actual value
    of property in goods transferred in the
    execution of the works contract, then, such
    value adopted for the purposes of payment
    of value added tax or sales tax, shall be
    taken as the value of property in goods
    transferred in the execution of the said
    works contract for determination of the
    value of service portion in the execution of
    works contract under this clause.

    (ii) Where the value has not been
    determined under clause (1), the person
    liable to pay tax on the service portion
    involved in the execution of the works
    contract shall determine the service tax
    payable in the following manner, namely:-

    (A) in case of works contracts entered into
    for execution of original works, service tax
    shall be payable on forty per cent of the
    total amount charged for the works
    contract;

    (B) in case of works contract entered into
    for maintenance or repair or
    reconditioning or restoration or servicing
    of any goods, service tax shall be payable
    on seventy percent of the total amount
    charged for the works contract;

    (C) in case of other works contracts, not
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    covered under sub-clauses (A) and (B).

    including maintenance, repair, completion
    and finishing services such as glazing,
    plastering, floor and wall tiling,
    installation of electrical fittings of an
    immovable property, service tax shall be
    payable on sixty per cent. of the total
    amount charged for the works contract;

    Explanation 1. For the purposes of this
    rule,-

    (a) “original works” means-

    (i) all new constructions;

    (ii) all types of additions and alterations to
    abandoned or damaged structures on land
    that are required to make them workable;

                                        (iii)      erection,      commissioning       or
                                        installation      of   plant,   machinery     or
    

    equipment or structures, whether pre-

    fabricated or otherwise;

    (d) “total amount” means the sum total of
    the gross amount charged for the works
    contract and the fair market value of all
    goods and services supplied in or in
    relation to the execution of the works
    contract, whether or not supplied under
    the same contract or any other contract,
    after deducting-

    (i) the amount charged for such goods or
    services, if any; and

    (ii) the value added tax or sales tax, if any,
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    levied thereon:

    Provided that the fair market value of
    goods and services so supplied may be
    determined in accordance with the
    generally accepted accounting principles.
    Explanation 2.–For the removal of doubts,
    it is clarified that the provider of taxable
    service shall not take CENVAT credit of
    duties or cess paid on any inputs, used in
    or in relation to the said works contract,
    under the provisions of CENVAT Credit
    Rules, 2004.”

    The impugned order also does not disclose any

    meaningful discussion regarding the applicability of the

    valuation rules, the determination of the service component, or

    the impact of the constitutional principles governing taxation of

    works contracts. A quasi-judicial authority exercising

    adjudicatory powers is under an obligation to deal with every

    substantial contention having a bearing upon the tax liability.

    Mere reference to the submissions of a party is not sufficient;

    there must be an adjudication thereof supported by reasons. The

    impugned order, in the opinion of this Court, falls short of this

    requirement.

    18. Equally significant is the petitioner’s contention

    regarding Notification No. 30/2012-ST and the reverse charge
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    mechanism. The respondents have sought to repel the contention

    by asserting that the petitioner is a private limited company and

    therefore ineligible to claim the benefit of the notification. The

    petitioner, however, has specifically asserted that it is a

    partnership firm and that the description of its status as a private

    limited company in the cause title was an inadvertent error for

    which an interlocutory application for correction had been filed.

    Once such a dispute was raised and the very applicability of the

    notification depended upon the legal status of the assessee, the

    adjudicating authority was required to ascertain the factual

    position and render a clear finding thereon. The impugned order

    does not indicate that such an enquiry was undertaken. The

    determination of liability without first deciding a foundational

    issue affecting the applicability of the notification cannot be

    sustained.

    19. The Court also finds merit in the submission

    advanced on behalf of the petitioner that the adjudicating

    authority failed to adequately address the statutory notifications

    and circulars specifically relied upon by the assessee in its

    written submissions. A quasi-judicial order must demonstrate

    application of mind. The reasons recorded must be such as

    would indicate that the authority has considered the rival
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    submissions and has arrived at its conclusions through a process

    of reasoning. The requirement of recording reasons is not an

    empty formality; it is a fundamental facet of fair adjudication.

    The impugned order, despite running into several pages, does

    not satisfactorily address the core legal issues raised by the

    petitioner.

    20. This Court is, however, conscious that it is not

    sitting in appeal over the assessment order and therefore, the

    issues raised by the petitioner, as discussed hereinabove, are

    matters which should ordinarily be examined by the statutory

    authority in the first instance. For that very reason, this Court

    does not propose to adjudicate the petitioner’s tax liability on

    merits. Hence, the matter deserves to be remitted for a fresh

    consideration.

    21. Accordingly, this Court is of the considered

    view that the Order-in-Original dated 04.01.2024 cannot be

    sustained in law. For the reasons recorded hereinabove, the writ

    petition is allowed.

    22. The Order-in-Original dated 04.01.2024

    (Annexure-P/4) passed by the Principal Commissioner, CGST &

    Central Excise, Patna-I is hereby quashed and set aside. The

    matter is remanded to the concerned adjudicating authority for
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    fresh consideration. The adjudicating authority shall afford

    adequate opportunity of hearing to the petitioner and shall

    thereafter pass a fresh reasoned order in accordance with law.

    23. The fresh order shall be passed expeditiously,

    preferably within a period of four months from the date of

    receipt/production of a copy of this judgment. There shall be no

    recovery from the petitioner pursuant to the impugned order

    dated 04.01.2024 until a fresh order is passed in terms of the

    present judgment.

    24. The writ petition stands allowed in the aforesaid

    terms. No order as to costs.

    (Rajeev Ranjan Prasad, J)

    (Alok Kumar Sinha, J)

    HR/-

    U



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