2018 (3) TMI 1388 - AT - Service Tax

Service of SCN - whether the Show Cause Notice was validly served on the appellant-assessee or not? Held that - There is no attempt to serve the notice in the normal process by registered post or speed post. Further the service report prepared by the Superintendent, Faizabad also does not contain any number of attempts undertaken to serve the notice directly to the assessee. Straight away upon receiving the notice it has been served by affixture - there is no valid service of SCN. Appeal allowed - decided in favor of appellant.

Summary

Issues: Validity of service of Show Cause Notice

Analysis:
The main issue in this appeal was whether the Show Cause Notice was validly served on the appellant-assessee. The appellant's counsel argued that the Order-in-Original lacked jurisdiction due to the absence of proper service of the Show Cause Notice. The Order-in-Original did not specify the manner of service, raising concerns about the validity of the ex-parte order. The Commissioner (Appeals) dismissed the issue, citing a circular that allowed the exercise of power by the Adjudicating Authority. However, the Appellate Authority confirmed the demand and penalty under Section 78 of the Finance Act, 1994.

The Revenue supported the impugned order, and the Tribunal had previously directed the Revenue to produce evidence of service of the Show Cause Notice. During the hearing, the assessment record revealed that the Show Cause Notice was prepared and issued on specific dates. It was forwarded for service to the Assistant Commissioner, who reported that the appellant was not available at the address provided. The notice was then served by affixation in the presence of witnesses, with the affixation report dated accordingly.

Upon reviewing the facts, the Tribunal found the service by affixation to be questionable. There was no attempt to serve the notice through registered or speed post, and the service report lacked details of direct attempts to reach the assessee. The Tribunal concluded that the Show Cause Notice was not validly served, as the process followed did not comply with legal provisions. Consequently, the impugned order was set aside, emphasizing that a valid Show Cause Notice is essential for jurisdiction to pass an adjudication order. The appeal was allowed with consequential benefits to the appellant as per the law.