TMI Blog2023 (7) TMI 1239X X X X Extracts X X X X X X X X Extracts X X X X ..... for the purpose of communication of decisions/orders/summons to the parties. It is the basic Principle of Law long settled that if the manner of doing a particular is prescribed under any statute, the must be done in that manner or not at all. Section 27 of the General Clause Act will not come in aid to the respondent. The respondents failed to show any material that the impugned order dated March 6, 2018 was served upon the petitioner - respondents have already realised the amount from the petitioner and the same is lying with the respondents, therefore, to safeguard the interest of revenue at this stage, it is not proper to direct the amount to be returned to the petitioner as this Court has not gone into the merit of the matter. Matter remanded back to the Adjudicating Authority to decide the matter of fresh by allowing the petitioner to file reply to show cause and after giving an opportunity of hearing to the petitioner, the Adjudicating Authority shall dispose of the said matter within a period of eight weeks from the date of receipt of this order - petition allowed by way of remand. - WPA 575 of 2021 IA CAN 1 of 2021 - - - Dated:- 24-7-2023 - HON BLE JUSTICE KR ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... demand notice requesting the petitioner to file ST-3 Return for the period from October March 2015-16 and April-September 2016-2017 within seven days from the date of receipt of the notice. 7. On August 7, 2020, the respondent no. 3 had issued a letter calling upon the petitioner to deposit an amount of Rs. 7,58,764/- including cess under Section 73(1) of the Finance Act, 1994, late fee for the period from 2010-2011 to 2014-2015 under Section 70(1) of the Finance Act, 1994 and penalty of Rs. 30,000/-. The said notice was issued to the petitioner during the peak of Covid-19 pandemic and the petitioner could not deposit the same. Accordingly, the respondent no. 3 issued a letter dated September 16, 2020 calling upon the petitioner for depositing of the said arrears in terms of the letter dated March 6, 2018. On receipt of the letter dated March 6, 2018, the petitioners enquired how an order is passed without any proceeding and requested for supply of the copy of the order but the respondents refused to supply the copy of the order to the petitioner. 8. Mr. Naivn Barik, learned Advocate representing the petitioner submitted that without issuing any show cause notice and without ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uthorised agent, in other words, on no other person, to ensure efficaciousness. 15. Mr. Barik by relying upon the judgement reported in 2022 SCC Online Cal 4069 (Commissioner, Central CGST and CX Haldia Commissionerate and Others vs- Haldia Petrochemicals Ltd. and Others) and submitted that Sub-Section (2) of Section 37C of the Act would also be relevant, which states that every decision under the Act or the rules shall be deemed to have been served on the date on which the decision is tendered or delivered by post or courier referred to in Sub-Section(1) of Section 37C. Therefore, proof of delivery is mandatory condition to establish proper service of the decision. 16. Mr. Barik relied upon the judgment passed in the case of M/s. RU s Marketing and Creative Unit vs. The Commissioner of Service Tax by the Hon ble Madras High Court on December 11, 2017 and submitted that since there is no proof of even tender or delivery of the letter enclosing a copy of the order to the addressee by post, the deeming fiction in Sub-Section (2) of Section 37C read with Section 27 of the General Clauses Act, 1897 is not attracted. 17. Mr. Barik relied upon the judgment reported in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... suppression pursuant to a query, in order to evade tax. 21. Mr. Barik relied upon the judgement reported in (2009) 13 SCC 448 (Union of India vs. Rajasthan Spinning and Weaving Mills) and submitted that an incorrect statement cannot be equated with a wilful misstatement. The latter implies making of an incorrect statement with the knowledge that the statement was not correct. 22. Mr. Ratan Banik, learned Advocate representing respondent nos. 1, 2 3 submitted that on receipt of an information that the petitioner is providing Rent-a-Cab Service and supplying vehicles to various Government Departments and Private concerns on hire basis and also providing Man power services and other businesses but had not taken any Service Tax Registration as required under Section 69 of the Finance Act, 1994 read with Rule 4 of the Service Tax Rules, a letter was issued to the petitioner for submitting necessary documents for verification of Service Tax Liability but the petitioner has not submitted any reply and on receipt of reminder dated August 26, 2015, the petitioner had submitted some documents. 23. Mr. Banik submitted that on completion of investigation proceeding, a show cau ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ner has not deposited the same, the respondents have collected the amount after freezing the Bank Account of the petitioner in terms of Sections 87 and 88 of the Act read with Sections 79, 142 (8) (a), 173 and 174 of CGST Act. 27. Mr. Banik submitted that the extended period of five years under Section 73 (i) of the Finance Act, 1994 was invoked in the show-cause notice as the entire fact of evasion came to the light only after initiation of enquiry by the Department, thus penalty and interest was imposed upon the petitioner as per the specific provision of law as well as the notifications issued from time to time. 28. Mr. Banik submitted that onus to take registration is upon the petitioner and non registration with the Service Tax Department indicates malafide intention of the petitioner to keep his Taxable activities suppressed from the Tax authorities. He submits that while deciding the issue, the Adjudicating Authority had discussed the said issue in detail. 29. Mr. Banik submitted that the extended period of five years under Section 73 (i) of the Finance Act, 1994 was invoked in the show cause notice as the entire fact of evasion came to the light only after initiati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court found that the petitioner has received show cause notice and requested the respondent to refix the dates and thus the argument made by Mr. Barik that show cause notice is not served upon the petitioner is not sustainable. 33. As regard to the service of order dated March 6, 2018, as per the submission made by Mr. Banik and Annexture A4 page 79 of Affidavit-in- Opposition filed by the respondents no. 1, 2 and 3 (wrongly mentioned as a reply on behalf of the Commissioner of CGST and CX Siliguri Commissionerate), the order was sent to the petitioner by speed post dated March 14, 2018. Relying upon the said document, Mr. Banik submitted that it was sent to the registered address of the petitioner and as such provisions of Section 37C of the Central Excise Act has been fulfilled. As per the case of the respondents that for the purpose of confirmation of delivery of the said letter on June 12, 2023, a letter was issued to the Postmaster, Siliguri for providing delivery confirmation of the speed post dated March 14, 2018 but in reply it was intimated that the speed post article mentioned in the letter could not be traced due to non-availability of records as the period of reserva ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r that after the word sending it by registered post with acknowledgement due the words i.e. or by speed post with proof of delivery has been inserted. The aforesaid amendment itself would clearly shows that the amendment sought to be made is not only clarificatory in nature but also purely procedural for the purpose of communication of decisions/orders/summons to the parties. In the case of Commissioner, Central CGST and CX Haldia Commissionerate and Others (Supra), the Hon ble Division Bench of this Court held that: 7. Section 37C of the Central Excise Act, 1944 (for short the Act ) deals with service of decisions, orders, summons etc. Clause (a) of subsection (1) of section 37C would be relevant for the case on hand. It states that any decision or order passed or any summons or notice issued under the Act or the rules made there under shall be served by tendering the decision, order or summons or notice, sending it by speed post with acknowledgement due or by speed post with proof of delivery or by courier approved by the Central Board of Excise and Customs constituted under the Central Board of Revenue Act, 1963 to the person for whom it is intended or his authorise ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... set aside and remanded the matter back to the Adjudicating Authority to decide the matter of fresh by allowing the petitioner to file reply to show cause and after giving an opportunity of hearing to the petitioner, the Adjudicating Authority shall dispose of the said matter within a period of eight weeks from the date of receipt of this order. The petitioner is directed to appear before the Authority without fail and in case, if the petitioner fail to appear consecutive two dates, the respondents are free to take decision in the absence of the petitioner. 36. It is made clear that if the Adjudicating Authority decides the same in favour of the petitioner or if it is find that any excess amount realised from the petitioner, shall be returned to the petitioner, if the petitioner applied for. 37. WPA 575 of 2021 is thus allowed. Consequently, IA No. CAN 1 of 2021 is disposed of. Parties shall be entitled to act on the basis of a server copy of the Judgment placed on the official website of the Court. Urgent Xerox certified photocopies of this Judgment, if applied for, be given to the parties upon compliance of the requisite formalities. - - TaxTMI - TMITax - Servic ..... X X X X Extracts X X X X X X X X Extracts X X X X
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