2022 (1) TMI 49 - HC - GST

Right to appeal - Deemed service of adjudicating order / Non-receipt of the order - whether petitioner was in receipt of the order issued by the first respondent under Section 129(3) of the Act? - HELD THAT - Section 169 (1)(b) provides for service by registered post with acknowledgement due, while sub-clause (2) creates a deeming fiction as per which every decision or order shall be deemed to have been served on the date on which it is tendered as provided in sub-section (1). When a statute enacts that something shall be deemed to have been done, the Court has a duty to give effect to that fiction. As per the statutory prescription and going by the averments in the counter affidavit as well as the documents produced, it is evident that petitioner can be deemed to have been tendered with the order under Section 129(3) on 03.02.2020. The fiction that is created does not leave any room for doubt and since the tendering of notice is by registered post with acknowledgement due, there is no scope for even assuming that the order was not served on the petitioner - it is found that the order under Section 129(3) of the Act was served on the petitioner on 03.02.2020. Since the petitioner s right to pursue an appeal cannot be curtailed solely on account of non-receipt of an order or loss of an order, if law otherwise permits him to pursue the appeal, then certainly it is incumbent upon the first respondent to issue a certified copy to the petitioner. Petition disposed off.

Issues:
- Service of order under Section 129(3) of the Central Goods and Services Tax Act
- Invocation of bank guarantee without serving the order
- Right to prefer an appeal under Section 107 of the Act
- Contention for issuance of a certified copy of the order
- Condonation of period of limitation for pursuing an appeal

Analysis:

Issue 1: Service of order under Section 129(3) of the Act
The court examined the provisions of Section 169 of the Act which outline the methods of serving notices, orders, or communications. The court noted that service by registered post with acknowledgement due creates a deeming fiction where the decision or order is deemed to have been served on the date of tendering. Based on the counter affidavit and documents produced, the court found that the order under Section 129(3) was served on the petitioner on 03.02.2020, supported by the dispatch register and acknowledgement card.

Issue 2: Invocation of bank guarantee without serving the order
The petitioner alleged that the order under Section 129(3) was not served, thereby impeding the right to prefer an appeal under Section 107 of the Act. However, the respondent contended that the order was dispatched and received by the petitioner. The court, considering the petitioner's claim for a certified copy to pursue statutory remedies, directed the respondent to issue a certified copy of the order to the petitioner promptly.

Issue 3: Right to prefer an appeal under Section 107 of the Act
The petitioner argued that the right to appeal should not be curtailed due to non-receipt or misplacement of the order. Citing relevant Supreme Court orders condoning periods of limitation, the petitioner sought the issuance of a certified copy to exercise the statutory remedy of appeal. The court acknowledged this contention and directed the respondent to provide the certified copy to enable the petitioner to pursue the appeal.

Issue 4: Contention for issuance of a certified copy of the order
The court recognized the petitioner's entitlement to a certified copy of the order to facilitate the pursuit of statutory remedies. Emphasizing the importance of ensuring access to legal remedies, the court directed the respondent to issue the certified copy promptly to enable the petitioner to proceed with the appeal process.

Issue 5: Condonation of period of limitation for pursuing an appeal
Considering the petitioner's right to appeal and the Supreme Court's orders regarding the condonation of limitation periods, the court directed the respondent to issue the certified copy promptly. The court also instructed that the invocation of the bank guarantee be put on hold for 60 days to allow the petitioner time to pursue statutory remedies upon receiving the certified copy.

In conclusion, the court disposed of the writ petition by directing the respondent to issue a certified copy of the order to the petitioner and keeping the bank guarantee invocation on hold to enable the petitioner to pursue statutory remedies within the specified period.

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