Chartered Accountant
Bookmark and Share
click here to subscribe our newsletter
 
 
Corporate News *  GST registration cancellation without reasons amounts to ‘Economic Death’ of business: Supreme Court. *  No GST refund if appeal before GSTAT is filed late: Gujarat High Court. *  Mere upload of GST notice on portal not valid service, appeal limitation won’t start: Punjab & Haryana High Court. *  Taxpayer can’t be penalised for missing notices hidden under ‘Additional Notices/Orders’: Calcutta High Court allows fresh adjudication. *  State tax officer can’t issue GST SCN beyond CBIC-assigned jurisdiction: Bombay High Court stays recovery proceedings. *  Earlier 7.5% Pre-Deposit must count towards mandatory 10% for Appeal: Uttarakhand high court quashes CESTAT Order. *  Third Parties can’t challenge GST Advance Rulings merely due to financial impact: Karnataka HC *  GST SCN generated using AI tool quashed: Punjab & Haryana High Court *  Bank Attachment Quashed as Madras HC Quashes GST Order Issued Against Deceased Person *  ITC Blocking Order for Failure to Record ‘Reason to Believe’ U/R 86A Quashed: Allahabad High Court *  Govt Extends GSTAT Appeal Filing Deadline From 30 June to July 31, 2026 *  GST Demand on RWA Stayed: Allahabad High Court Questions Taxability of Electricity Distribution to Flat Owners *  CBIC Clarifies Jurisdiction After GST Registration Transfer: Earlier Proceedings Remain Valid, New Officer to Continue Action *  GST authorities’ certification not mandatory for reimbursement, but tax payment must be proven: Karnataka HC *  Contractor can’t seek gst reimbursement through writ when contract has arbitration clause: Karnataka HC *  Unsigned Order Is No Order in Law: AP HC Quashes GST Assessment Order for Want of Officer’s Signature *  Customs Can’t Levy Rs. 1.36 Crore Cost Recovery Charges Without Proof of Full-Day Officer Deployment: CESTAT  *  12% IGST Payable On Imported Dialysis Machine Parts: CESTAT *  Bombay High Court Admits Challenge to GST Limitation Extension Notifications; Grants Protection Against Coercive Recovery *  Criminal Case Can’t Run Parallel to GST Proceedings on Same Facts: Allahabad High Court *  Allahabad High Court Stays GST Detention Order; Directs Release of Vehicle and Goods on Deposit of Rs. 1.44 Lakh *  Service Tax Can’t Be Levied on Loss-Making Contracts: Gujarat High Court *  GSTN Mandates Ship-to GSTIN in e-Invoice and e-Way Bill APIs; Introduces Voluntary e-Way Bill Closure Facility from August 1, 2026 *  GST Appeal Can’t Be Rejected as Time-Barred When Taxpayer Was Pursuing Rectification Remedy: Telangana High Court *  Absence of E-Way Bill and Transport Documents Justifies Customs Seizure U/s 110: Gauhati HC *  Madras High Court Upholds GST Late Fee and Penalty for Non-Filing of Annual Return, Dismisses Challenge  *  GST Records, Purchase Documents Sufficient to Discharge Burden Under Customs Act: CESTAT Orders Release of 3.65 Kg Gold  *  No Sugar Cess Payable on Sugar Exported Out of India: CESTAT *  Road Construction Services Exempt and SCN Time-Barred: CESTAT Quashes Service Tax Demand Based Solely on Form 26AS  *  ITC Freeze Upheld After GST Dept Find Suppliers Were Allegedly Fake Bill-Trading Entities: Madras HC 
Subject News *  Input service benefits can’t be denied: CESTAT allows export refund despite MMTC acting as Canalising agency. *  No service tax demand without proof of service of SCN: CESTAT. *  Service tax demand quashed as dept. fails to prove service of SCN: CESTAT *  GST : Mere allegation of inadequate consideration of reply not enough to invoke writ jurisdiction: Delhi High Court *  Onerous conditions imposed for provisional release of seized imported goods shouldn’t amount to virtual denial of relief: CESTAT. *  GST SCN without alleging fraud cannot invoke sec. 74: Karnataka High Court quashes adjudication order. *  Extended Limitation Can’t Be Invoked Merely on Form 26AS Data: CESTAT *  Revenue-Sharing with Restaurants Not Taxable as Business Support Service: CESTAT *  R. 6(3) Option Can’t Be Forced on Taxpayer; CESTAT Quashes Rs. 12.36 Crore CENVAT Credit Demand *  Excise Duty | Power Consumption Alone Can’t Prove Clandestine Manufacture: Karnataka High Court *  Madras High Court Examines DGGI’s Authority to Issue GST Penalty Orders Under Section 122, Adds DGGI as Party *  Proceedings under omitted r. 96(10) can’t survive without saving clause: andhra pradesh high court quashes gst refund recovery *  Excise duty power consumption alone can’t prove clandestine manufacture: karnataka high court *  Madras high court rules GST show cause notices must disclose grounds for invoking extended limitation *  Court Can’t Direct Extension GST Return Deadlines or Waive Interest and Penalties: Karnataka High Court *  GST Notifications Can’t Go Beyond GST Council Recommendations: Madras High Court Quashes SCN on Branded Pulses *  Appeal Can’t Be Dismissed for Delay When Dept’s Own Order Mis-states Limitation Period: CESTAT *  No Evidence of KYC or Due Diligence Breach By Customs Broker: CESTAT Quashes Licence Revocation in Export Overvaluation Case *  Glucometers Are Chemical Analysis Instruments Classifiable Under Tariff Heading 9027: CESTAT *  Validity of Post-GST Service Tax Proceedings Upheld: Gujarat High Court Dismisses Challenge to S. 73 SCN *  Rectified GST Refund Applications Can’t Be Rejected as Time-Barred If Original Refund Claim Was Filed Within Limitation: Gujarat HC *  Service Tax Refund Can’t Be Denied as Time-Barred When Levy Itself Is Unconstitutional: Gujarat High Court *  Same Officer Can’t Act As Auditor & Adjudicator: Karnataka High Court *  Karnataka High Court Condones 324-Day Delay, Revives Customs Appeal in Jewellery Pilferage Case  *  Madras High Court Quashes GST Assessment Order Passed Ex Parte Despite Prior ITC Reversal; Lifts Bank Attachment *  Tobacco Process Doesn’t Amount to Manufacturing: Madras High Court Quashes Rs. 1.32 Crore Compensation Cess Demand  *  Recovery Notice Unsustainable After Voluntary Reversal of Unutilised Credit: CESTAT  *  GST | ‘System Generated’ SCN Without Officer Details Invalid: Allahabad HC  *  Electronic Records Without Statutory Certification Requirements Can’t Justify Undervaluation Allegations: CESTAT *  Madras High Court Stays GST Order, Finds Prima Facie Merit in Plea Against S. 74 Proceedings Based on S. 73 Intimation  

Comments

Print   |    |  Comment

PJ/CASE LAW/2015-16/3015

Whether ex-party order is sustainable when SCN as well as order is served on wrong address ?

Case:VENTRAPATHI FINANCIAL SERVICES Vs SUPERINTENDENT OF C. EX.

Citation:2015 (39) S.T.R. 956 (A.P.)

Brief Facts:This writ petition is filed seeking to set aside the Adjudication Order dated 30-5-2014 passed under the provisions of Central Excise Act as adopted for the purpose of collection of Service Tax notified under the Finance Act, 2013 on the ground that notice preceding passing of final order was not served on the petitioner thereby the petitioner was deprived of an opportunity to put forth their grievance on merits of the matter.
The petitioner-firm is a service provider and the address provided by them to the Department is Door No. 46-16-14/2, Panduranga Street, Danavaipeta, Rajahmundry which is mentioned in Form ST-2, certificate of registration granted under Section 69 of the Finance Act, 1994. The fact of final order having been passed by the respondent came to the knowledge of the petitioner only when the banker having received recovery notice dated 1-4-2015 communicated the same to the petitioner through letter dated 9-4-2015. Thereafter, the petitioner caused enquiry and came to know that the impugned order was passed on 30-5-2014 and obtained the same from the authorities.

Appellant’s Contention: The petitioner also submitted that the letter dated 15-4-2015 addressed to the Assistant Commissioner and another letter dated 17-4-2015 to the Commissioner specifically set out that the show cause notice dated 10-10-2013 which is mentioned in the impugned order was never delivered to the petitioner, and further, the order dated 30-5-2014 was also not received by the petitioner. The petitioner also pointed out that both in the show cause notice dated 10-10-2013 and in the final order dated 30-5-2014, the address mentioned is M/s. Ventrapati Financial Services, Proprietor of Shri Hari Krishna Kishore Ventrapati, D. No. 46-16-4, Danavaipeta, Rajahmundry 533103. On the face of it, the address mentioned in the final show cause notice as well as the final order is entirely different from the address under which the petitioner-firm was registered.
 
Respondent’s Contention: The respondents have filed counter affidavit stating that the petitioner is taking undue advantage of mismatch in the address mentioned. And as a matter of fact, the petitioner was aware of the issuance of the show cause notice as well as passing of the final order and if at all the petitioner-firm is aggrieved by the order dated 30-5-2014, they are required to exhaust the remedy of appeal as may be available to them under the provisions of Finance Act, and pray to dismiss the writ petition.
 
Reasoning of Judgement: The learned counsel for the respondents has filed Form ST-2 under which registration was granted to the petitioner and the same reveals address of the petitioner as 46-16-14/2, Panduranga Street, Danavaipeta, Rajahmundry. According to the respondents, the show cause notice dated 10-10-2013 which was said to have been dispatched to the petitioner was returned unserved with an endorsement refused. A close of scrutiny of zerox copy of the envelop containing the notice reveals that the address mentioned thereon is 46-16-4, Danavaipeta, Rajahmundry-533 103. Likewise, the very show cause notice dated 10-10-2013 which is field by the petitioner also reveals the address as 46-16-4, Danavaipeta, Rajahmundry. In the same manner, the final order dated 30-5-2014 also bears the address 46-16-4, Danavaipeta, Rajahmundry which is different from the address registered with the Department. Apart from this, in the letters dated 18-7-2013 and 18-9-2013 of the respondents-authorities, which have been filed by the learned Standing Counsel for the Department, the address mentioned is the same as is found in the certificate of registration which is in fact correct address.
In other words, it cannot be said that the Department was not aware of the correct address of the petitioner and it is an admitted fact that both the show cause notice and final order were dispatched to the wrong address resulting in violation of the statutory requirement of service notice for the purpose of fastening liability of Service Tax on the petitioner. The procedure of service of notice and passing orders as enumerated in the Central Excise Act, 1944 has been made part of the Service Tax by virtue of Section 83 of the Finance Act. For the purpose of clarity, Section 37C of the Central Excise Act, 1944 as well as Section 83 of the Finance Act may be noticed as under :
Section 37C. Service of decisions, orders, summons, etc. -(1) Any decision or order passed or any summons or notices issued under this Act or the rules made thereunder, shall be served
(a)by tendering the decision, order, summons or notice, or sending it by registered post with acknowledgement due [or by speed post with proof of delivery of by courier approved by the Central Board of Excise and Customs constituted under the Central Boards of Revenue Act, 1963 (54 of 1963)] to the person for whom it is intended or his authorized agent, if any;
(b)if the decision, order, summons or notice cannot be served in the manner provided in clause (a), by affixing a copy thereof to some conspicuous part of the factory or warehouse or other place of business or usual place of residence of the person for whom such decision, order, summons or notice, as the case may be, is intended;
(c)if the decision, order, 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.
Section 83. Application of certain provisions of Act 1 of 1944. -
The provisions of the following sections of the Central Excise Act, 1944 (1 of 1944), as in force from time to time, shall apply, so far as may be, in relation to Service Tax as they apply in relation to a duty of excise :-
[9A, 9AA, 9B, 9C, 9D, 9E, 11B, 11BB, 11C, 12, 12A, 12B, 12C, 12D, 12E, 14, 15, [31, 32, 32A to 32P (both inclusive),] 33A, 34A, 35EE, 35F, 35FF to 35-O (both inclusive), 35Q, 35R, 36, 36A, 36B, 37A, 37B, 37C, 37D, 38A and 40.
From the facts of the present case, it is seen that there is non-compliance of the statutory provisions by the respondent in passing the order of best judgment assessment on the petitioner apart from violation of principles of natural justice.
In that view of the matter, the impugned order dated 30-5-2014 cannot be sustained, and accordingly, the same is set aside giving liberty to the respondents-authorities to pass appropriate orders after giving an opportunity of hearing to the petitioner. Considering the fact that the order passed has been set aside for non-compliance of the statutory provisions, and as on today, the petitioner has already been served with show cause notice, this Court feels that interest of justice would be served if a specific time-frame is made to complete the hearing as well as passing appropriate orders. In that view of the matter, the respondents-authorities shall conclude the entire exercise within a period of three months from the date of receipt of a copy of this order. It is made clear that in the event the petitioner-firm desires to submit any further information, they may do so within a period of four weeks from today. This order, however, shall not be construed as expressing any opinion on merits of the case. It is left open to the petitioner to take all legal objections if any including the limitation for filing such objections and the same shall be considered in accordance with law.
With the above observations, this writ petition is allowed. No order as to costs.

Decision: Write Petition Allowed

Comment: In this case, the show cause notice as well as order in original is served on wrong address. Theorder is also passed ex parte as show cause notice also sent at wrong address. The petitioner filed a writ petition before High Court on the ground that notice preceding passing of final order was not served on the petitioner thereby the petitioner was deprived of an opportunity to put forth their grievance on merits of the matter. The High Court held that Principles of natural justice has been violated and therefore Petition is allowed.
 

Department News


Query

 
PRADEEP JAIN, F.C.A.

Head Office : -

Address :
"SUGYAN", H - 29, SHASTRI NAGAR, JODHPUR (RAJ.) - 342003

Phone No. :
0291 - 2439496, 0291 - 3258496

Mobile No. :
09314722236

Fax No. :0291 - 2439496


Branch Office : -

Address:
1008, 10th FLOOR, SUKH SAGAR COMPLEX,
NEAR FORTUNE LANDMARK HOTEL, USMANPURA,
ASHRAM ROAD, AHMEDABAD-380013

Phone No. :
079-32999496, 27560043

Mobile No. :
093777659496, 09377649496

E-mail :pradeep@capradeepjain.com