2019 (5) TMI 813 - HC - Service Tax

Principles of natural justice - imposing a liability under Section 73(2) after amalgamation - petitioner were not served with the show cause notice nor with any notices of personal hearing - Amalgamation took place - compliance with Section 37(C) of the Central Excise Act, 1944 or not - HELD THAT - Petitioner herein is a Company with which the assessee got amalgamated in the year 2017 and the factum of amalgamation was made known to the respondents only on 03.04.2017. Therefore, the lack of knowledge on the part of the petitioner, which appears to be genuine, would require one more opportunity to be given to them. The lack of knowledge on the part of the petitioner about the proceedings, is bona fide in this case, since the petitioner could not have checked up before the Orders of amalgamation, whether the procedural requirements under Rule 4 (5A) of the Service Tax, 1994, had been complied with or not. - Matter restored before the adjudicating authority. Petition allowed.

Summary

Issues:
Challenge to Order imposing liability under Section 73(2) and other provisions based on violation of principles of natural justice.

Analysis:
The petitioner challenged an Order passed by the Commissioner of Service Tax, seeking to bypass the departmental appeal process due to alleged violation of natural justice principles. The petitioner contended that the amalgamated assessee was not served with show cause notices or provided with personal hearing opportunities. The court directed the respondents to provide documents regarding the service of notices.

The respondents submitted a counter affidavit with copies of show cause notices, Panchanama for service, and letters of intimation for personal hearing, along with returned postal covers. It was revealed that genuine efforts were made to serve the notices on the assessee, but they were unsuccessful as the assessee had vacated the address. The respondents argued that they had complied with statutory requirements under relevant Acts, indicating no breach of natural justice principles.

Had the original assessee appeared, the contention of natural justice violation would have been rejected due to failure to update the address as required by law and completion of necessary procedures by the respondents. However, as the petitioner was a company that amalgamated with the assessee post the alleged violations, the court found the lack of knowledge on the part of the petitioner to be genuine. Therefore, the petitioner was granted an opportunity to respond to the show cause notice and participate in a personal hearing.

Consequently, the Writ Petition was allowed, setting aside the impugned Order. The petitioner was directed to file a response to the show cause notice by a specified date, after which the respondents would schedule a personal hearing and issue Orders as per the law. The petitioner was instructed to provide an address for future correspondence. Any pending miscellaneous petitions in the writ petition were to be dismissed, with no costs imposed.