Andhra HC (Pre-Telangana)
Ch.Ramakotaiah, S/O Cvpn Sarma, Aged ... vs 1.The Assistant Commissioner, Central ... on 2 August, 2017
Equivalent citations: AIRONLINE 2017 HYD 65
Author: T.Rajani
Bench: T.Rajani
HONBLE SRI JUSTICE V.RAMASUBRAMANIAN AND HONBLE SMT. JUSTICE T.RAJANI
Writ Petition No.22947 of 2017
02-8-2017
Ch.Ramakotaiah, S/o CVPN Sarma, Aged about 55 years, Occ: Business, R/o D.No.50-22-11, Varapurna Nilayam, TPT Colony, Seetha
1.The Assistant Commissioner, Central Excise & Service Tax, Div-IB (Ser. Tax), 4th Floor, D.No.10-522, Opp. Lane to HSBC, S
2.The Addl. Commissioner, O/o the Commissioner of Customs, Central Excise & Service Tax, Visakhapatnam-I, Commissionerate,
Counsel for Petitioner : Mr. T.V.L. Narasimha Rao
Counsel for Respondents: Mr. B.Narayana Reddy,
Asst. Solicitor General
<Gist:
>Head Note:
? Cases referred:
Nil.
HONBLE SRI JUSTICE V.RAMASUBRAMANIAN
AND
HONBLE SMT. JUSTICE T.RAJANI
Writ Petition No.22947 of 2017
Order: (per V.Ramasubramanian, J.)
The petitioner has come up with the above writ petition
challenging an Order-in-Original passed by the 2nd respondent,
confirming a demand of Rs.20,41,386/- towards service tax
payable by the petitioner in respect of a works contract
undertaken by him for the period 2010-11.
2. Heard Mr. T.V.L. Narasimha Rao, learned counsel for the
petitioner and Mr. B.Narayana Reddy, learned Assistant Solicitor
General of India for the respondents.
3. The Order-in-Original, which is challenged by the
petitioner, is actually dated 28-8-2013. The petitioner has come
up with a challenge to the Order-in-Original dated 28-8-2013,
only after the respondents issued a garnishee notice on
01-6-2017. The claim of the petitioner in the writ petition is that
the Order-in-Original was never served on the petitioner and that
therefore the petitioner was completely in the dark until
a garnishee notice was served on the bank.
4. In view of the total denial of the service of the copy of the
Order-in-Original on the part of the petitioner, this Court
directed the learned Assistant Solicitor General on 12-7-2017 to
produce proof to show whether the Order-in-Original was served
on the petitioner or not. In response, the learned Assistant
Solicitor General has produced the records to show that the
Order-in-Original was registered with the speed post counter on
16-9-2013. The receipt issued by the speed post counter on 16-
9-2013 shows that the same was registered to the address of the
petitioner. The printout of the online tracking system of India Post
shows that the article was delivered on
17-9-2013 at 15:36 hours.
5. However, Mr. T.V.L. Narasimha Rao, learned counsel for
the petitioner, contended that a printout of the speed post online
tracking system was not sufficient to show service of the copy of
the Order-in-Original on the petitioner, especially in the light of
the mandatory requirement under Section 37C of the Central
Excise Act, 1944. Section 37C was amended only by Act
17/2013 with effect from 10-5-2013 to include service through
courier. Therefore, the learned counsel contended that as long as
there is no acknowledgement of service of the Order-in-Original
upon the petitioner, the requirements of Section 37C cannot be
taken to have been complied with.
6. But we do not agree. The sworn Affidavit of the petitioner
shows that he has participated in the proceedings before the
Additional Commissioner throughout. The show cause notice
dated 21-12-2012 was admittedly served on the petitioner and
the petitioner attended personal hearing on
24-7-2013. The petitioner claims, in paragraph-4 of the Affidavit
in support of the writ petition that he also submitted written
submissions to the 2nd respondent on 24-7-2013. It is only
thereafter that the impugned Order-in-Original was passed on
28-8-2013.
7. It is too hard to believe that a person who participated in
the personal hearing on 24-7-2013 and submitted written
arguments on the same date, got into a sense of false security as
though no Order-in-Original could have been passed for four
years thereafter.
8. The contention that service of an Order-in-Original is
a mandatory requirement under Section 37C of the Central
Excise Act, 1944, does not take the case of the petitioner
anywhere. As a matter of fact, a similar contention was raised
before a Bench of this Court in Rishabh Polymers (P) Ltd. v.
Designated Authority/Commissioner of Central Excise, Hyderabad
in W.P.M.P.No.53572 of 2016 in W.P.No.5977 of 1999. But by an
order dated 07-4-2017, the Bench rejected the contention raised
therein.
9. In fact in the said case, the petitioner before the Bench
sought a review of an earlier judgment on the basis of
Section 37C and also on the basis of 3 decisions of the Supreme
Court. But the contention was repealed by a Bench, to which one
of us (VRS, J.) was a party.
10. The reach of Section 37C cannot be extended to such
an extent that unless an acknowledgement card containing the
signature of the assessee is produced, the service of the Order-
in-Original upon the assessee cannot be treated as completed.
Once a registered letter or a speed post is proved to have been
submitted at the post office and the necessary registration fee or
speed post fee paid therein, a presumption would normally arise
that in due course, the said registered letter reached the
addressee in 48/72 hours. The online tracking system provided
by India Post is nothing but a proof of such delivery in an
electronic form. Once the website of the India Post shows that the
article sent by the Department was delivered to the addressee,
the burden of proving that the Order-in-Original was served on
the assessee, is discharged by the Revenue. Thereafter, the
burden shifts to the assessee to show that despite the entry in the
online tracking system, they did not receive the copy of the order.
11. In this regard, it will be relevant to take note of
Section 27 of the General Clauses Act, 1897, which reads as
follows:
27. Meaning of service by post.Where any Central Act
or Regulation made after the commencement of this Act
authorizes or requires any document to be served by post,
whether the expression serve or either of the expressions
give or send or any other expression is used, then,
unless
a different intention appears, the service shall be deemed to
be effected by properly addressing, pre-paying and posting
by registered post, a letter containing the document, and,
unless the contrary is proved, to have been effected at the
time at which the letter would be delivered in the ordinary
course of post.
12. By producing the printout of the online tracking system,
the Revenue has proved in this case that they addressed, pre-
paid and posted by registered speed post,
the letter containing the Order-in-Original. Once these
requirements of Section 27 of the General Clauses Act, 1897, are
satisfied, the requirements of Section 37C of the Central Excise
Act, 1944, would also stand satisfied.
13. In view of the above, we do not accept that the petitioner
was ignorant of the order. Hence, the writ petition fails and is
dismissed. The miscellaneous petitions, if any, pending in this
writ petition shall stand closed. No costs.
___________________________
V.RAMASUBRAMANIAN, J.
_____________ T.RAJANI, J. 02nd August, 2017.