TMI Blog2017 (4) TMI 194X X X X Extracts X X X X X X X X Extracts X X X X ..... this procedural rule or not. The rule requires service to be effected. Thus, service is mandated but its mode is set out in the sub-rules. Whether there is proof of service or not would, therefore, necessarily depend on the facts and circumstances in each case. The reference is returned because there was no question of law arising for decision or opinion and answer of this Court - appeal disposed off. - SALES TAX REFERENCE NO.53 OF 2009 IN REFERENCE APPLICATION NO.35 OF 2004 - - - Dated:- 21-3-2017 - S.C. DHARMADHIKARI B.P. COLABAWALLA, JJ. Ms Jyoti Chavan, Asstt. Government Pleader, for the Applicant State. None for the Respondent. ORAL ORDER (Per Shri S.C. DHARMADHIKARI, J.) : 1. The Tribunal has referred the following questions of law for opinion and answer of this Court: (a) Whether on the facts and circumstances of the case and on true and correct interpretation of the provisions contained in rule 68 of the Bombay Sales Tax Rules, 1959, the Tribunal was justified in law in holding that the Revision notice dated 26.11.2002 calling the appellant for hearing on 27.01.2003 was not properly served as per the said provisions in Rule 68 and that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he original appellant in Appeal No.94 of 2003, decided on 3.11.2004. He is engaged in the manufacture and sale of edible oils. He is duly registered under the provisions of the Bombay Sales Tax Act, 1959 (for short, the BST Act ). He was assessed for the Financial Year 1991-92 under the BST Act by virtue of the Assessment Order, dated 20.1.1995, passed by the Sales Tax Officer, Pune. Being aggrieved by the levy of tax on the sale of motor vehicle and interest under Section 36(3)(a) and Section 36(3)(b), he filed an appeal against the Assessment Order before the Assistant Commissioner of Sales Tax (Appeals), Pune. The appellant/sole proprietor could not remain present before this Appellate Assistant Commissioner. Hence, the appeal was dismissed for non-prosecution on 16.12.1996. No Second Appeal was filed against this order. However, during the pendency of the appeal, the sole proprietor's business premises were visited by the Enforcement Branch for certain investigation. On scrutiny of the books of account for the relevant period, the Enforcement Branch Officials noticed that the same proprietor had purchased oil from certain dealers situated at Manwat and Selu of Parbha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rict Pune. The said Pote was called for a personal hearing on 27.1.2003. This notice was sent by Registered Post Acknowledgement Due (for short, R.P.A.D. ). The postal authorities took the packet to the addressee but the addressee refused to accept it. There is an endorsement on the packet that the addressee has refused to accept the service. When the packet containing the notice was returned with this remark, the Deputy Commissioner proceeded on the footing that the sole proprietor is duly served. Though this was the factual position, yet this notice was also pasted on a conspicuous part of the sole proprietor's business place. It is in these circumstances that on 27.1.2003 the Deputy Commissioner passed an ex parte revisional order. He set aside the order passed in the appeal on 28.3.2000 and restored the reassessment order dated 9.6.1999. The Deputy Commissioner also issued directions to recover the dues in accordance with law. 4. It is aggrieved and dissatisfied with this order that Appeal No. 94 of 2003 was preferred by the sole proprietor. It was heard by a Bench of the Maharashtra Sales Tax Tribunal. However, that Bench was divided in its views on the aspect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ost. Thus, services of orders and notices under the Bombay Sales Tax Act and the Rules if by post, that is the mode chosen, then, this sub-rule amplifies as to how that should be deemed to have been effected. Admittedly, in the present case, there is an endorsement on the packet which was sent to the address of the noticee, namely, the sole proprietor; that the sole proprietor received it but refused to accept the same. When it was sent by R.P.A.D. to the address, it was returned by the postal authorities with the remark, that the addressee refused to accept the packet. That is why it is returned. Thus, the presumption that when the addressee whose address is set out on the envelope had an occasion to notice and peruse the packet, meant for him, but he refuses to accept it, then, that is deemed to be served. The addressee in this case is correctly described. There is no dispute about his identity. Even his address is correct. It is at that address the packet is carried and by the concerned postal authority. The duly authorised person carrying the packet reached the address. On noticing the addressee, he serves it, but the addressee after having perused the packet refused to accept ..... X X X X Extracts X X X X X X X X Extracts X X X X
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