Custom, Excise & Service Tax Tribunal
Rajesh Kumar Gupta vs Cgst Lucknow on 30 October, 2025
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL
ALLAHABAD
REGIONAL BENCH - COURT NO.I
Service Tax Appeal No.70180 of 2024
(Arising out of Order-in-Appeal No.157-ST/APPL/LKO/2023 dated 09.02.2023
passed by Commissioner (Appeals) Customs, CGST & Central Excise,
Lucknow)
Shri Rajesh Kumar Gupta, .....Appellant
(S-120, Shop No.62, LDA Market, Aliganj,
Lucknow-226024)
VERSUS
Commissioner of Central Excise &
Service Tax, Lucknow ....Respondent
(7A, Ashok Marg, Lucknow) APPEARANCE:
Shri Dushyant Kumar, Consultant for the Appellant Shri Santosh Kumar, Authorized Representative for the Respondent CORAM: HON'BLE MR. P.K. CHOUDHARY, MEMBER (JUDICIAL) FINAL ORDER NO.- 70757/2025 DATE OF HEARING : 02.09.2025 DATE OF PRONOUNCEMENT : 30.10.2025 The present appeal has been filed by the Appellant assailing the Order-in-Appeal No.157-ST/APPL/LKO/2023 dated 09.02.2023 passed by the Commissioner (Appeals) Customs, GST, Central Excise, Lucknow.
2. The learned Consultant appearing on behalf of the Appellant arrayed the sequence of the facts of the case and vehemently argued that the demand is barred by limitation as the Appellant has not received the Show Cause Notice1.
3. I find that it would be appropriate to first examine the facts of the case which are briefly stated as under:-
(a) The Appellant is engaged in providing "Mandap Keeper, Pandal and Shamiana Services" and was issued a SCN 1 SCN Service Tax Appeal No.70180 of 2024 2 dated 29.12.2020 demanding Service Tax amounting to Rs.6,23,139/- for the period 2015-16 with proposal to impose penalty and recover interest under the provisions of the Finance Act, 1994.
(b) It is the case of the Appellant that he has not received the impugned SCN, but only received the notice dated 12.04.2022 for personal hearing.
(c) The Appellant approached the office of the Adjudicating Authority making a request vide letter dated 20.04.2022 for issuance of a Certified Copy of the SCN but he was only served a photocopy of the SCN and not the certified copy as requested.
(d) The Adjudicating Authority decided the case vide Order-in-
Original dated 28.04.2022 without making any observation with regard to the issue of limitation.
(e) The Appellant challenged the order before the Commissioner (Appeals) who rejected the appeal without examining the claim of the Appellant that he has not received the SCN and demand is barred by limitation.
(f) The Appellant in view of the above background filed the present appeal before the Tribunal. The only ground to challenge the order of Commissioner (Appeals) is that the demand is barred by limitation as the SCN was served upon him on 29.04.2022 after 6 years and 29 days i.e. after more than five years.
4. The learned Departmental Authorized Representative justified the impugned order and prayed that the appeal filed by the Appellant, being devoid of any merits, may be dismissed.
5. Heard both the sides and perused the appeal records.
6. I find that the only ground of the Appellant is that he has not received the SCN, but received photocopy of the same only after 5 years when he approached the office. He has also submitted a copy of the request letter dated 20.04.2022 filed for supply of copy of SCN, which bears the stamp of the office.
Service Tax Appeal No.70180 of 2024 3
7. The Revenue on the other hand could not produce any document evidencing receipt/acknowledgment of the SCN by the Appellant. The Appellant has been agitating this issue right from the Adjudication stage but neither the Adjudicating Authority nor the Commissioner (Appeals) could lay hands on any tangible evidence regarding the service of the SCN.
8. During the course of hearing before this Bench, the Bench also called for the proof of dispatch of the SCN which has been produced by the Revenue in the form of copy of "Dispatch Register" which indicates that the SCN has been dispatched by post. "S.Post" was also found written against dispatch number of the article. Hence, it can be inferred that the postal article containing SCN has been sent by Speed Post.
9. The Revenue has produced the evidence of dispatch of the Impugned Notice by Speed Post but it still leads to presumption that the same has been received by the Appellant. The claim of Revenue has been controverted by the Appellant that he has not received the same.
10. The Revenue has however failed to produce any proof of service of the notice or proof of delivery. The Hon'ble Supreme Court in the case of Saral Wire Craft Pvt. Ltd. Vs. CC, CE & ST 2015-TIOL-154-SC-CX held that the basic principle is that if the manner of doing a particular act is prescribed under any statute, the act must be done in that manner. The text of observation is reproduced as under:-
"It is an anathema in law to decide a matter without due notice to the concerned party. Every effort must be taken to meaningfully and realistically serve that affected party so as not merely to ensure that he has knowledge thereof but also to enable him to initiate any permissible action."
Subsequently, the Hon'ble High Courts and other Sub-ordinate Courts followed the ratio laid down by the Hon'ble Supreme Court in the above case.
Service Tax Appeal No.70180 of 2024 4
11. The Hon'ble High Court of Gujarat in the case of Regent Overseas Pvt. Ltd. Vs. Union of India reported in 2017 (6) G.S.T.L. 15 (Guj.) held thus :-
"Service of notice by speed post - Proof of service - Section 37 of Central Excise Act, 1944 corresponding to Sections 93B & 94 of Finance Act, 1994 provides for notice by speed post with proof of delivery - No material by way of proof of delivery of notice to petitioners produced - Impugned ex parte is clearly in breach of principles of natural justice. [para 8]"
12. Further, the Hon'ble High Court of Rajasthan in the case of R.P. Casting Pvt. Ltd. Vs. CESTAT, New Delhi reported in 2016 (344) E.L.T. 168 (Raj.) observed thus :-
"Appeal to Appellate Tribunal - Limitation - Condonation of delay - Service of order - No evidence adduced by Department to show that order served upon assessee as copy sent by registered post not received by him - Said service not in terms of statutory provision which require service of order by registered post Acknowledgment Due (AD)."
13. The Tribunal in the case of Dipka Coal Carriers Pvt. Ltd. vs. CCE, Raipur reported in 2017 (47) S.T.R. 21 (Tri-Del.) dismissed the Revenue's appeal in similar matter and observed as under :-
"Appeal to Appellate Tribunal - Limitation - Delay in filing appeal - Condonation of - Tribunal condoned delay of 4 years 9 months in filing appeal before it holding service of order by speed post not a valid service if proof of delivery not produced - Revenue contending that in view of Allahabad High Court decision [2014 (300) E.L.T. 496 (All.)] and Section 27 of General Clauses Act, 1897, Speed Post service of order is sufficient compliance of Section 37C(1)(a) of Central Excise Act, 1944 - HELD : Speed Post service of order not a sufficient compliance of Section Service Tax Appeal No.70180 of 2024 5 37(1)(a) ibid if no proof of delivery produced as held by Bombay High Court in Amidev Agro Care Pvt. Ltd. [2012 (26) S.T.R. 299 (Bom.)."
14. In view of the judgements of the Hon'ble Supreme Court and Hon'ble High Courts cited above, it can be precisely concluded that the law on this issue is settled. The Revenue has to strictly follow the provisions of Section 37C of the Central Excise Act and it was incumbent upon the Revenue to produce evidence of delivery or service which is the mandate as per provision of Section 37C(1)(a) of the Act. Hence, in absence of proof of delivery the impugned SCN cannot be treated to have been actually served upon the Appellant.
15. It is my considered view that the demand made under the impugned SCN is barred by limitation and is not sustainable. Accordingly, the impugned order is set aside. The appeal filed by the Appellant is allowed with consequential relief, if any, as per law.
(Order pronounced in open court on - 30.10.2025) Sd/-
(P. K. CHOUDHARY) MEMBER (JUDICIAL) LKS