2019 (11) TMI 959 - HC - Service Tax

Service of SCN - no service of the original order of the Commissioner (Appeals) upon the petitioner - Recovery of service tax with penalty - coercive action for recovery - case of the petitioner is that coercive recovery has been initiated even though he had not received the appellate order passed by the Commissioner of Customs and Central Excise (Appeals) - HELD THAT - Admittedly, been no service of the original order of the Commissioner (Appeals) upon the petitioner - thus, no recovery action may be initiated, in the aforesaid circumstances and the respondents are directed to keep in abeyance such recovery for a period of eight weeks from the date of this order. Petition disposed off.

Summary

Issues:
Coercive recovery initiated without petitioner receiving appellate order; Lack of acknowledgment of service of order; Relief sought through Writ of Certiorarified Mandamus; Direction to file appeal challenging Commissioner's order.

Analysis:
The petitioner contended that coercive recovery was initiated without receiving the appellate order from the Commissioner of Customs and Central Excise (Appeals), leading to the belief that the appeal was pending. The petitioner only became aware of the order upon facing recovery actions and approaching the Assessing Authority. The respondents admitted the lack of acknowledgment from the postal department regarding the service of the order on the petitioner. Notably, the respondents did not contest the absence of service of the original order on the petitioner. Consequently, the court directed the respondents to suspend the recovery action for eight weeks.

The Writ Petition sought a Writ of Certiorarified Mandamus to quash the Commissioner (Appeals) order dated 28.04.2009 and the assessment order from 07.07.2015. However, the court found that the petitioner had appropriately utilized the appellate hierarchy provided by statute. Instead of granting the requested relief, the court allowed the petitioner to file an appeal challenging the Commissioner (Appeals) order within four weeks. The court instructed the Registry of the Customs, Central Excise, and Service Tax Appellate Tribunal to accept a xerox copy of the order for the appeal, considering the original order was not served on the petitioner. The court emphasized expeditious handling of the appeal by the Tribunal.

In conclusion, the Writ Petition was disposed of with no costs, and connected Miscellaneous Petitions were closed. The judgment highlighted the importance of proper service of orders in legal proceedings and the necessity of following the prescribed appellate procedures in challenging administrative decisions.