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TMI Blog2024 (9) TMI 1085X X X X Extracts X X X X X X X X Extracts X X X X ..... the place where the show cause notice was addressed. The answer has to be in the negative. Under such circumstances, this Court is of the opinion that the recourse to Sub-Clauses (b) (c) of Clause 37C (1) of the Act of 1944 is not permissible if the show cause notice was not sent at the proper address. In the instant case, it would be seen from a perusal of paragraph 1.15 of the impugned order that recourse to Sub-Clause (c) of Section 37C (1) of the Act of 1944 was resorted to on the ground that the service of the show cause notice could not be effected at No. 1 Ghilamara, North Lakhimpur which from the materials placed before this Court do not seem to be the address of the petitioner. This Court, therefore, is of inhesitant view that the impugned order dated 25.11.2022, was passed without affording due opportunity to the petitioner and as such, the same violates the principles of natural justice which is a facet of Article 14 and 21 of the Constitution. The consequential effect of the above opinion of this Court is that this Court can invoke its jurisdiction under Article 226 of the Constitution in the present facts. Whether the Office of the Commissionerate, Central Goods and S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r appreciating the said submissions, this Court finds it relevant to take note of the brief facts which led to the filing of the instant writ petition. The petitioner herein is the proprietor of a firm in the name and style of M/s. M.T Enterprise . The petitioner and his firm is registered under the Central Goods and Service Tax Act, 2017 (for short, the CGST Act ) and the Principal place of business is Techi Building, Model Village, Naharlagun, Papum Pare, Arunachal Pradesh: 791110. The petitioner has also been allotted a GST No. bearing 12AIYPT2833LIZM. As per the said registration certificate, the petitioner s proprietorship firm namely, M/s. M.T. Enterprise do not have any additional place of business in the State of Arunachal Pradesh. It is also seen from Annexure-1 to the writ petition which is a Form 26AS that the petitioner s PAN number is AIYPT2833L and the address mentioned therein is E-I Pang, Sagalee, Pampum Pare district, Sagalee, Arunachal Pradesh 791112. The records further show that the jurisdictional office under the CGST Act, 2017 in respect of the petitioner and his firm is the office of the Commissionerate CGST and Customs, Sector A Naharlagun 791110. 4. In the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch, the respondent authorities had pasted the said show cause notice in the Notice Board of the respondent No. 2. The learned counsel referred to Section 37C (1) (a) of the Central Excise Act, 1944 (for short, the Act of 1944 ) and submitted that when an order, notice, summons etc., are to be issued in terms with the said Act of 1944, the same can be done so only by sending it by registered post with acknowledgment due or by speed post with proof of delivery or by courier approved by the Central Board of Excise and Customs constituted under the Central Boards of Revenue Act, 1963 to the person for whom it is intended or his authorised agent, if any. (B). The learned counsel appearing on behalf of the petitioner further submitted that in case the service could not be meted out in terms with Section 37C (1) (a) then only in such circumstance, Sub-Clause (b) and (c) of Section 37C (1) of the Act of 1944 can be resorted to. (C). The learned counsel further submitted that the instant writ petition was filed in the year 2023 and notice was issued as far back as on 13.03.2023 and till date, the respondent authorities have not placed any material to show that the petitioner has/had any Off ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed in view of the proceedings being initiated by the Commissioner of the CGST, Dibrugarh. The learned counsel also submitted that the petitioner had an alternative and efficacious remedy to challenge the impugned order before the Customs and Excise Service Tax Appellate Tribunal and the said aspect is also mentioned in the impugned order dated 25.11.2022. ANALYSIS AND DETERMINATION: 8. Upon hearing the learned counsels appearing on behalf of the parties, three questions arise for determination: (i). Whether this Court ought to exercise the jurisdiction under Article 226 of the Constitution, in view of the availability of an alternative and efficacious remedy in the form of filing an appeal before the Custom Excise and Service Tax Appellate Tribunal? (ii). Whether the impugned order dated 25.11.2022 is is bad in law on account of non service of show cause notice and an opportunity of hearing being provided to the petitioner? and (iii). Whether the respondent No. 2 had the territorial jurisdiction to adjudicate the subject matter, taking into account that the petitioner claims that he does not have any office or place of business within the jurisdiction of the Respondent No. 2? 9. F ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oned in those notices were at No. 1 Ghilamara, North Lakhimpur and the petitioner had also stated on oath that the said address is not the address of the petitioner and there is no denial to the same by the respondent authorities. It is also pertinent to observe that in paragraph 11 of the writ petition, the petitioner while dealing with the notices which have been enclosed in Annexures No.6 and 7 stated that they were sent through e-mail, which the petitioner did not have the occasion to notice. In fact, a perusal of the impugned order would also show that it was an admitted fact that the petitioner had no address at the place where the show cause notice was issued. Paragraphs 1.15, 1.16 1.17 of the impugned order are quoted hereinbelow: 1.15. The Show Cause Notice was returned undelivered from the address of the Noticee with a remark Adressee Left, Return to Sender . As the SCN was returned undelivered, vide this office letter C. No. V(15)19/ADJ/ST/COMMR/DIB/2021/4444 Dated 16.11.2021, the Assistant Commissioner, CGST Tezpur Division was requested to cause delivery of the same to the Noticee. A copy of the SCN has been pasted in the Notice Board of the Divisional Office as well a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ry or warehouse or other place of business or usual place of residence of the person for whom such decision, order, summons or notice, as the case may be, is intended; (c) if the decision, order, summons or notice cannot be served in the manner provided in clauses (a) and (b), by affixing a copy thereof on the notice board of the officer or authority who or which passed such decision or order or issued such summons or notice. (2) Every decision or order passed or any summons or notice issued under this Act or the rules made thereunder, shall be deemed to have been served on the date on which the decision, order, summons or notice is tendered or delivered by post [or courier referred to in sub-section (1)] or a copy thereof is affixed in the manner provided in sub-section (1). 13. A perusal of the above quoted provision would show that any decision or order passed, or any summons or notices issued under the Act of 1944 or the Rules made thereinunder shall be served in terms which sub-clause (a) by tendering the decision, order, summons or notice, or sending it, by registered post with acknowledgment due or by speed post with proof of delivery or by courier approved by the Central Bo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sdiction under Article 226 of the Constitution in the present facts, which is the question No.(i) so formulated hereinabove. 16. Let this Court now analyse and determine the question No.(iii) so formulated hereinabove. The question No.(iii) pertains to as to whether the Office of the Commissionerate, Central Goods and Service Tax, Dibrugarh Division, would have the jurisdiction over the petitioner. This Court at this stage, finds it relevant to take note of the submission of Mr. SC Keyal, who made a submission on the basis of verbal instructions to the effect that the petitioner had carried out business thereby rendering service within the jurisdiction of the Commissionerate of GST, Dibrugarh Division. The said submission, however, is not based on any documents being placed before this Court or on the basis of any affidavit. At the cost of repetition, this Court finds it pertinent to reiterate, that the respondent authorities were afforded various opportunities to file their affidavit, which they failed to do so. 17. During the course of hearing, this Court enquired with the learned counsel appearing on behalf of the petitioner as to whether the petitioner is registered as per the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at his proper address. Conclusion : (I). The impugned order dated 25.11.2022 is set aside and quashed on the ground that the same has been passed in violation to the Principles of Natural Justice. The corrigendum which has been issued on 16.12.2022 which has also been put to challenge and being based on the impugned order dated 25.11.2022 which has been set aside and quashed is also set aside and quashed. (II). The setting aside and quashing of the impugned order dated 25.11.2022 and the corrigendum dated 16.12.2022, however, shall not preclude the respondent authorities, more particularly, the respondent No. 2 to initiate fresh steps under the extant provisions of law. However, if such steps are taken, the petitioner should be issued a show cause notice in the address i.e. Techi Building, Model Village, Naharlagun, Papum Pare, Arunachal Pradesh: 791110 which as per the petitioner is the present address of the petitioner. (III). The impugned order dated 25.11.2022 is interfered with on the ground of violation of the Principles of Natural Justice, and, as such, the period from issuance of the show cause notice i.e. on 16.11.2022 till a certified copy of this judgment is served upon ..... X X X X Extracts X X X X X X X X Extracts X X X X
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