Calcutta High Court (Appellete Side)
Four Side Media Private Limited & Anr vs The Commissioner Of Cgst & C. Ex on 10 December, 2018
Author: Debangsu Basak
Bench: Debangsu Basak
1
10.12.2018
Ct. No.8
S/L No.17
KS
W. P. No. 24258 (W) of 2018
Four Side Media Private Limited & Anr.
Versus
The Commissioner of CGST & C. Ex., Tolygunj Division, Kolkata South Commissioner
& Ors.
Mr. Prabir Bera
Mr. Arijit Chakraborty
.....For the Petitioners
Mr. Amitabrata Roy
Ms. Shatabdi Sen
.....For the Respondents
The petitioners assail a notice dated November 20, 2018 in respect of a recovery proceedings.
Learned advocate appearing for the petitioners submits that, the petitioners did not receive the order in original in respect of which the recovery proceedings is sought to be initiated. He draws the attention of the Court that, a sum of Rs.17,02,687/‐ has since been taken by the department from the bank account of the petitioners, in such recovery proceeding.
In view of the allegations, made by the petitioners that, the petitioners did not receive the order in original, learned Advocate appearing for the respondents was directed to produce a copy of the order in original as also the evidence showing that, the petitioners were served with the order in original.
Learned advocate appearing for the Department places on record, a photocopy of a page of the Despatch Registrar of the Department which shows that, the order in original was sent by speed post to the petitioners. He, however, is not in a position to produce the evidence of receipt of such order in original by the petitioners. He makes over a copy of the order in original duly signed by him on each page, to the learned advocate appearing for the petitioners in Court.
2Learned advocate appearing for the petitioners draws the attention to the Court to the fact that, the copy of the order in original made over in Court is not the certified copy of the order. Therefore, the appellate authority will refuse to entertain the appeal on the basis of such order in original. He also submits that, since, the department has already taken the money from the bank account, it would be appropriate to direct release of the sum so taken, as the petitioners are entitled to prefer an appeal from the order in original on deposit of 7.5% of the duty demanded.
In the facts of the present case, the duty demanded by the order in original is a sum of Rs.17,66,032/‐. A penalty of Rs.1,00,000/‐ has also been imposed.
It appears from the records made available to Court that, the bank account of the petitioners was debited with a sum of Rs.17,02,687/‐ pursuant to the recovery proceedings. The materials made available to Court do not establish conclusively that, the order in original was served upon the petitioners prior to the initiation of the recovery proceedings.
In such circumstances, it would be appropriate to balance the equities between the parties. The order in original is appealable. The petitioners seek to prefer an appeal therefrom.
In such circumstances, the petitioners are at liberty to prefer an appeal from the order in original, on the basis of the copy of the order made over by the learned advocate appearing for the department to the learned advocate appearing for the petitioners in Court.
Learned advocate appearing for the department is requested to sign each page of the order in original to authenticate the same. The appellate authority is requested to treat the order in original as made over by the learned advocate appearing for the department to the learned advocate appearing for the petitioners in Court, as the certified copy of the order in original. The appellate authority is at liberty to direct the parties, to produce the certified copy of the order in original, if required. The appellate authority will not dismiss 3 the appeal simply on the ground that, the appellant before it failed to produce the certified copy of the order in original, if the appeal is accompanied with the copy of the order in original as counter‐signed by the learned advocate appearing for the department today.
As the recovery proceedings were initiated at such a stage, when the order in original was not served by the petitioners, it would be appropriate to direct the department to release 50% of the sum which it withdrew from the account, to the petitioners, and credit the same bank account from which it was withdrawn, within a period of two weeks from date.
W. P. No. 24258 (W) of 2018 is disposed of.
The appellate authority will not insist upon further deposit of the 7.5% of the amount of duty demanded, in view of this order allowing the department to retain 50% of the amount it had withdrawn from the bank account of the petitioners. The withdrawn amount will abide by the result of the decision in the appeal.
Urgent certified website copies of this order, if applied for, be made available to the parties upon compliance of the requisite formalities.
(Debangsu Basak, J.)