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TMI Blog2023 (7) TMI 1239X X X X Extracts X X X X X X X X Extracts X X X X ..... ioner, Head Quarter, Anti-Evasion Unit for the first time on August 11, 2015 issued a letter to the petitioner for verification of Service Tax liability under the Finance Act, 1994 and requested the petitioner to submit necessary documents within seven days from the date of receipt of the letter. 4. On receipt of the said letter, the petitioner came to know that the service relating to "Rent-a-Cab" is also taxable service and required to be registered before the said Service Tax Department, accordingly, the petitioner got registration on September 10, 2015. As there was delay in complying with the letter dated August 11, 2015, the respondent no. 2 again issued a letter dated August 26, 2015 and requested the petitioner to submit the document at the earliest. 5. After getting the registration of Service Tax, the respondent no. 2 had again issued a notice for enquiry of Service Tax liability on September 17, 2015 and the petitioner was asked to appear and produce the documents as mentioned in the said notice. As the petitioner was required to submit the details, the petitioner has requested the North Bengal Development Department for providing the service tax for the services provi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pondent No. 6 has credited an amount of Rs. 6,30,000/- as the said amount was available in the account of the petitioner. 11. Mr. Barik submitted it is mandatory that the show cause notice is to be issued if the tax department contemplates any action against the petitioner but in the present case, no show cause notice was issued to the petitioner. He also submits that no notice of demand and no opportunity of hearing was given to the petitioner. 12. Mr. Barik submitted that even the petitioner has not received the order in original dated March 6, 2018 as the said order was never communicated to the petitioner and thus the respondents have violated the established procedure of law. 13. Mr. Barik submitted that the entire proceedings as stated in the letter dated August 7, 2020 and September 16, 2020 has been issued without any legal basis and in violation of the provisions of law and thus the same is required to be set aside. He submits that the respondents have illegally and without adopting any legal process have freezed the account of the petitioner. 14. Mr. Barik by relying upon the judgement reported in (2015) 14 SCC 523 (Saral Wire Craft Private Limited vs. Commissioner of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of fraud, collusion or any wilful misstatement or supersession of facts or contravention of any of the provisions of this Act or of the rules with intent to evade payment of duty". 19. Mr. Barik relied upon the judgment passed in Civil Appeal No. 6060 of 2003 (M/s Uniworth Textiles Ltd. vs. Commissioner of Central Excise, Raipur) dated 22.01.2013 and submitted that "supersession of facts" can have only one meaning that the correct information was not disclosed deliberately to evade payment of duty. When facts were known to both the parties, the omission by one to do what he might have done and not that he must have done, would not render it supersession. It is settled law that mere failure to declare does not amount to wilful supersession. 20. Mr. Barik relied upon unreported judgment passed by the coordinate bench of this Court in WP No. 912 of 2013 (Simplex Infrastructures Limited vs. Commissioner of Service Tax, Kolkata) dated 07.04.2016 and submitted that mere failure to disclose a transaction and pay tax thereon or a mere misstatement or mere contravention of the Central Excise Act or Finance Act, 1994, as amended, or any Rules framed thereunder, is not sufficient for invoc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rmity with the provisions of Section 37C of the Central Excise Act, 1944 read with Section 83 of the Finance Act, 1994 and Section 169, Sub-Section 1(b) of the CGST Act. Mr. Banik relied upon the judgment reported in AIR 2014 SC 3057 (M/s Ajeet Seeds Limited vs. K. Gopala Krishnaih) and submitted that Section 27 of the General Clauses Act gives rise to a presumption that service of notice has been effected when it is sent to the correct address by registered post. It is not necessary to aver in the complaint that in spite of return of the notice unserved, it is deemed to have been served or that the addressee is deemed to have knowledge of the notice. 25. Mr. Banik submitted that the allegation made by the petitioner with respect of non receipt of show cause notice and Original Order was never raised before the Adjudicating Authority when the petitioner has prayed for several dates for personal hearing. 26. Mr. Banik submitted that there is a provision under Section 85 of the Act for preferring an appeal against the order impugned but the petitioner instead of filing an appeal has filed the present writ application. He submits that after the expiration of the period of appeal, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the petitioner for verification of Service Tax Liability and only after receipt of the said letter, the petitioner got registration. 32. The main grievance of the petitioner is that, the show cause notice was not served upon the petitioner and without giving an opportunity of hearing, the Adjudicating Officer had passed the order and the copy of the order was not served to the petitioner. The Respondent No. 2 had issued show cause upon the petitioner on February 5, 2016. The show cause notice was sent to the petitioner by speed post dated February 9, 2016. On January 2, 2018, a notice was issued to the petitioner informing the petitioner that the Respondent No. 2 is pleased to grant an opportunity of personal hearing any seven working days from January 9, 2018 to January 12, 2018 and January 15, 2018 to January 17, 2018. On receipt of the said notice, the petitioner by his representation requested the respondent for fixing the date on January 25, 2018. On receipt of the representation of the petitioner, the respondent again on January 17, 2018 issued notice further informing the petitioner that a personal hearing is fixed on January 29, 2018. On receipt of the said notice, agai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der, summons or notice cannot be served in the manner provided in clauses (a) and (b), by affixing a copy thereof on the notice-board of the officer or authority who or which passed such decision or order or issued such summons or notice. (2) Every decision or order passed or any summons or notice issued under this Act or the rules made thereunder, shall be deemed to have been served on the date on which the decision, order, summons or notice is tendered or delivered by post [or courier referred to in sub-section (1)] or a copy thereof is affixed in the manner provided in sub-section (1).]" In the case of Saral Wire Craft Private Limited (Supra), the Hon'ble Supreme Court held that an order must be tendered on the person concerned or his authorised agent, in other words, on no other person, to ensure efficaciousness. The respondents by relying upon the judgement of M/s Ajeet Seeds Ltd. (Supra) submitted that Section 27 of General Clause Act could be profitably imported and in such a situation service of notice is deemed to have been effected on the sender unless he proves that it was really not served and that he was not responsible for such nonservice. In the case of M/s RU ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h the respondents are relying upon reveals as follows : "M/s Alok Kumar Paul, R/o Siliguri" and Postal Receipt No. EW 853279819IN. Admittedly, there is no acknowledgement due or any track report. It is also admitted by the respondents that the postal authorities have informed the respondents that "the Speed Post articles mentioned above could not be traced at the end due to non-availability of the relevant record as the period of preservation of record is 6 (six) months as per the directorate letter dated April 26, 2002". 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. In view of the above, 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. 34. The 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 in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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