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2020 (1) TMI 170 - HC - GSTLevy of penalty - Principles of natural justice - service of notice - notice was not served on the person on whom penalty was levied, but on the driver of vehicle - as a result opportunity of hearing could not be availed off - Imposition of penalty u/s 129(3) of the West Bengal Goods and Services Tax Act, 2017 - HELD THAT:- The notice for imposition of penalty requires to be served upon the person on whom the penalty is to be imposed. Furthermore, an opportunity of hearing has to be granted. In the event, such hearing is not granted, the same would definitely amount to violation of principles of natural justice. Audi alterem partem – no person should be judged without a fair hearing – is the minimum necessity that is required to be followed as per the above provision - when the respondent authorities had in their possession documents such as invoice and challan that showed as to who was the owner of the goods, it was incumbent upon them to serve a copy of the notice upon the owner of the goods. It is trite law that the Circular issued by the Central Board of Indirect Tax and Customs is only binding upon the authorities and not upon the assessee. I have to mention here that the Circular and the Form are not complying with the mandatory provision of giving notice to the person who is the owner of the goods and upon whom the imposition of penalty is to be made - in the present case, the petitioner-company is having its registered office at Siliguri, Darjeeling District. Therefore, the reason for non-service of the notice by the Assistant Commissioner of State Goods and Service Tax, Siliguri upon the petitioner-company that was located within 15 kms. remains unexplained. Thus, it is clear that in the present case, there has been more than a technical infringement of the statutory provision as no hearing whatsoever was granted to the petitioner. Having not been granted an opportunity of hearing, the petitioner was unable to put his case before the concerned authority. Surprisingly, the notice in FORM GST MOV-07 was served upon the driver but the order passed in FORM GST MOV-09 was served upon the driver and the petitioner-company. The notice required to be served under Section 129 (3) has not been served properly. Accordingly, there has been a clear violation of the principles of natural justice - the impugned order is set aside - the Assistant Commissioner of State Tax, Goods and Services Tax directed to issue a fresh notice upon the petitioner, and thereafter, grant an opportunity of hearing and pass a reasoned order.
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