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TMI Blog2025 (2) TMI 215X X X X Extracts X X X X X X X X Extracts X X X X ..... ssued summons or notice. Admittedly the show-cause notice was never served upon the petitioner. Similarly, the letter dated 07.04.2022 fixing the personal hearing as well as the Order-in-Original were also sent by speed post as contended in the reply dated 30th May, 2023 given under the RTI Act, however, the same also met with the same fate of not delivering upon the petitioner. Therefore, the respondent-Authority was required to take recourse to clauses (b) and (c) of Sub-section (1) of Section 37C of the Act, 1944, however, it is admitted in the affidavit-in-reply that as the petitioner had changed the place of the business, it was not possible to follow the provisions of Section 37C (b) of the Act, 1944 as at the time of delivery, the address of the premises was not in existence but the provisions of Section 37C (c) was followed by affixing copy thereof on the notice board, no document or details are available even for compliance of clause (c) of Section 37C (1) of the Act, 1944. It is clear that neither the show-cause notice nor the Order-in-Original was ever been served upon the petitioner at any point to time and when there is non service of the show-cause notice and the Or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etor of proprietary concern M/s. Source India and engaged in business of export of service. As the petitioner has provided services outside the India i.e. taxable territory, the services provided by the petitioner is not chargeable to service tax as per the provisions of Section 66B of the Finance Act, 1994 (for short 'the Act, 1994'). The petitioner therefore did not obtain the service tax registration. 5.2. The petitioner thereafter obtained the registration under the provisions of the Central/State Goods and Service Tax Act, 2017 (for short 'the GST Act') and accordingly, GST Registration Certificate was issued to the petitioner in Form GST REG-06 dated 06.07.2018. 5.3. It is the case of the petitioner that the registration was obtained on the principal place of business situated at 504, Rajvi Arcade, Opp. Gurukul Mandir, Drive In Road, Ahmedabad-380052, Gujarat which was later on amended, as the petitioner shifted the place of business and moved to new premises situated at 7th Floor, B-707, Times Square Arcade-II, Nr. Avalon Hotel, Bodakdev, Ahmedabad. The petitioner had preferred an application for amendment of the principal place of business in the business of Registration ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the same was issued without jurisdiction by the respondent No. 2 as it remained unserved upon the petitioner. 6.1. Learned advocate Mr. Jimi Patel for the petitioner submitted that in absence of service of the show-cause notice as well as the impugned Order-in-Original, both are liable to be quashed and set aside as the respondent No. 2 could not have passed the impugned Order-in-Original without service of the show-cause notice contrary to the provision of Section 37C (1) of the Central Excise Act, 1944 (for short 'the Act, 1944'). 6.2. It was further submitted that even on merits, the impugned show-cause notice and the Order-in-Original are based upon the information available in Form 26AS under the Income Tax Act, 1961 by drawing an inference that the export services provided by the petitioner are liable to service tax though as per provisions of Section 66B of the Act, 1994, the export services are out of the scope of levy of the service tax. 6.3. It was further submitted that even the letter dated 07.04.2022 issued by the respondent for personal hearing fixing the three dates i.e 19.04.2022, 21.04.2022 and 25.04.2022 was never received by the petitioner and therefore, the i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourier approved by the Central Board of Excise and Customs constituted under the Central Boards of Revenue Act, 1963 (54 of 1963)] to the person for whom it is intended or his authorised agent, if any; (b) if the decision, order, summons or notice cannot be served in the manner provided in clause (a), by affixing a copy thereof to some conspicuous part of the factory 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 maybe, 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." 9. On perusal of the above provision, it is clear that the decision or order passed or any summons or notice issued under the Act is to be served by various modes as prescribed in clause (a) by tendering or by registered post or by speed post with proof of delivery or by courier, failing which, by affixing a copy thereof to some conspicuous part of the factory or warehouse or other place of b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by invoking the extended period of limitation as per the first proviso to Sub-section (1) of Section 73 of the Act, 1994 read with Notification dated 27.06.2020.
13. On perusal of the Order-in-Original, it also appears that the respondent-Assessing Officer has failed to record the aspect of service of notice or communication vide letter dated 07.04.2022 fixing the date of personal hearing and has passed the ex-parte Order-in-Original considering that the petitioner failed to respond to the show-cause notice and failed to remain present in the personal hearing ignoring the fact that the notice was never served upon the petitioner.
14. In such circumstances, even on merits, the matter is required to be considered in favour of the petitioner as petitioner was never liable to pay the service tax on the export services under the provisions of the Act, 1994 and hence, no further orders are required to be passed.
15. The petition therefore succeeds and is accordingly, allowed. The impugned show-cause notice dated 20.09.2020 and the Order-in-Original dated 27.04.2022 are hereby quashed and set aside. Rule is made absolute to the aforesaid extent. No orders as to cost. X X X X Extracts X X X X X X X X Extracts X X X X
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