SERVICE OF NOTICES UNDER GST

[Dr. Sanjiv Agarwal]

The statutory provisions for service of notices etc in certain circumstances are provided in section 169 of the CGST Act, 2017.

Methods of Service of Documents

Various methods of service of any decision, notice, order, summon or any other communication under the Act or Rules have been provided in section 169, are as follows:

(a)   By giving or tendering it directly or through a messenger or courier to the addressee or the taxable person or to his manager or to person duly authorized or an advocate or a tax practitioner holding authority to appear in the proceeding on behalf of the taxpayer or to a person regularly employed by him in connection with the business, or to any adult member of family residing with the taxpayer, or

(b)  By registered post or speed post or courier with acknowledgement due, to the person for whom it is intended or his authorised agent, if any at his last known place of business or residence, or

(c)   By sending a communication to his e-mail address, provided at the time of registration or as amended from time to time or

(d)  By making it available on common portal, or

(e)   By publication in a newspaper circulating in the locality of taxpayer or the person to whom it is issued is last known to have resided, carried on business or personally worked for gain, or

(f)   If none of the above is practicable, by affixing it in some conspicuous place on his last known place of business or residence address, or

(g)   If such affixing is also not practicable, by affixing a copy thereof on the notice board of the officer who has passed such decision or order or issued such summons or notice.

The meaning of terms such as authorised representative, common portal, tax practitioner etc shall be governed by the definitions provided in GST law or rules, as the case may be.

For service of show cause notices or orders etc, following judicial pronouncements under erstwhile law are relevant :

• In Saradha Travels v. CST, Chennai 2014 (7) TMI 884 - MADRAS HIGH COURT it was held that pasting adjudication order on premises of assessee under a Mahazar before two independent witnesses, when assessee was not available in premises and premises was also locked, is a valid service under section 37(1)(b) of Central Excise Act, 1944.

• In Saral Wire Craft Pvt. Ltd v. CC, CE & ST 2015 (7) TMI 894 - SUPREME COURT where adjudication order was served on kitchen boy of the assessee, it was held to be not a proper service. As per section 37C of the Central Excise Act, 1944, notice must be served to the person for whom it is intended or his authorized agent under proof of acknowledgment. It is the basic principle of law long settled that if the manner of doing a particular act is prescribed under any statute, the act must be done in that manner or not at all. The judgment lays down the pre-requisite for issuance of notice. Any notice issued in violation of section 37C is not valid. It is worth mentioning that section 37C has been made applicable to service tax also by virtue of section 83 of the Finance Act, 1994. Hence, the principle laid down in the judgment shall mutatis mutandis apply to notice served in service tax cases also.

• In Ventrapathi Financial Services v. Superintendent of Central Excise 2015 (7) TMI 468 - ANDHRA PRADESH HIGH COURT , where ex parte adjudication order, show cause notice and other communications were sent at wrong address and petitioner came to know only when bank informed about recovery proceedings, it was held that principles of natural justice were violated and service of order was not in terms of statutory provisions and as such impugned order was set aside. Adjudication proceedings were ordered to be completed afresh within three months.

• In CST v. Sunil Haribhau Pote 2017 (4) TMI 194 - BOMBAY HIGH COURT , assessee was engaged in manufacture and sale of edible oils, the department served notice at correct address of assessee, but it was returned by the postal authorities with the remark, that the addresses refused to accept the notice. It was held that there was no dispute about his identity, so it amounted to sufficient and adequate service of notice i.e., deemed to be served.

What documents require service

Service may be required in relation to any of the following :

(a) Any decision

(b) Any order

(e) Other communication such as letter of enquiry, notice of hearing, seeking details or information, audit report, recovery notice etc.

These terms have not been defined but shall take their meanings under General Clauses Act. Such communications are required for administration of the tax law under various provisions.

When deemed to be served

Every decision, order, summon, notice or any communication shall be deemed to have been served to the addressee on the date on which it is tendered or published or a copy thereof is affixed in the manner as provided in section 169(1) of the CGST Act, 2017

Service in case of registered or speed post

              Any decision, order, summons, notice or any other communication shall be deemed to be served where such communication is sent by registered post or speed post in terms of section 169 (3). Accordingly, when any such communication is sent by registered post or speed post, it shall be deemed to have been received by the addressee at the expiry of the period normally taken by a registered/speed post letter in transit unless contrary is proved.

Following judicial pronouncements can be relied upon for communications sent by speed post or registered post.

• In Mirzapur Electrical Industries Ltd. v. CCE, Allahabad 2013 (4) TMI 131 - ALLAHABAD HIGH COURT , since object of sending post by registered post was to keep a record, which was also served by sending an article by speed post through same agency, 'Registered Post' and 'Speed Post' were considered to be same modes of service and sending order by speed post was held to be a valid compliance with section 37C of Central Excise Act, 1944. Hence, where assessee had not given forwarding addressing for communication, envelope was returned back undelivered and revenue made an attempt to serve assessee by pasting order on factory gate, it was considered to be valid compliance.
• In Jay Balaji Jyoti Steels Ltd. v. Cestat, Kolkata ( 2015 (1) TMI 859 - ORISSA HIGH COURT where order was sent by speed post, it was held that post office issues receipt for both - by registered post and by speed post. Hence, both have to be treated as registered post in view of section 28 of Indian Post Office Act, 1898. Only difference between the two is that charges payable are normally higher for 'speed post' for delivery at an early date. Further, insertion of 'or by speed post with proof of delivery' after the words 'sending it by registered post with acknowledgement due' in section 37C(1)(a) of Central Excise Act, 1944 w.e.f. 10.05.2013 is clarificatory and procedural amendment. It is curative since various courts had held that communication of notices through speed post was in consonance with law.