9911796707
TMI Blog2025 (2) TMI 215X X X X Extracts X X X X X X X X Extracts X X X X ..... ule for and on behalf of the respondents. 3. Having regard to the controversy in narrow compass, with the consent of the learned advocates for the respective parties, the matter is taken up for hearing. 4. By this petition under Article 227 of the Constitution of India, the petitioner has prayed for the following reliefs : "(A) this Hon'ble Court be pleased to call for the records of the proceedings, look into them and be pleased to issue a writ of certiorari or any other appropriate writ, order or direction quashing notice issued u/s 73 (1) dated 20.09.2020 at Annexure-I and Order In Original u/s 73 of FA, 1994 passed u/s 73 dated.27.04.2022 at Annexure-J. (B) this Hon'ble Court be pleased to call for the records of the proc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e principal place of business in the business of Registration to the GST Department by filing Form GST REG-14 on 18th February, 2019 which was accepted by the respondent-Authority by passing an order in Form GST REG-15 dated 07.03.2019 showing new principal place of business as requested by the petitioner. 5.4. It is the case of the petitioner that in the month of December, 2022, Chartered Accountant of the petitioner who was handling GST related work, received call from the respondent for payment of the outstanding demand related to the petitioner in respect of service tax proceedings. As the Chartered Accountant was not handling the work of Service Tax of the petitioner, he arranged to obtain the copy of the Order-in-Original passed unde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the impugned Order-in-Original dated 27.04.2022 also remained unserved. 5.6. Being aggrieved, the petitioner has preferred this petition challenging the impugned show-cause notice and Order-in-Original as 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') ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly filed on behalf of the respondents to submit that the show-cause notice was issued by registered speed post upon the petitioner which is also born out from the despatch register placed on record along with the additional affidavit-in-reply. 7.2. It was submitted that the notice was issued upon the old address of the petitioner which has remained undelivered and unfortunately, the Department is not having the receipt for the same. It was submitted that similarly, the Order-in-Original was also served upon the old address and has remained undelivered. It was further submitted that as the notice was not served upon the petitioner, provisions of Section 37C(c) of the Act, 1944 was not duly followed by affixing a copy on the notice board of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce 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 business or usual place of residence of the person for whom such decision, order, summons or notice, as the case maybe, is intended and on failure of the modes prescribed in clauses (a) and (b), by affixing a copy thereof on the notice boa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oint to time and when there is non service of the show-cause notice and the Order-in-Original, both are liable to be quashed and set aside. 12. In ordinary course we would have remanded the matter back to the respondent-Authority for adjudicating the show-cause notice a fresh de-novo, however, considering the facts of the case, the respondent No. 2 could not have assumed the jurisdiction on the basis of data available in Form 26AS comprising the total amount paid/credited under Sections 194C, 194I, 194H, 194J of the Income Tax Act, 1961 for the year under consideration on the ground that the petitioner failed to disclose the liability to pay service tax by invoking the extended period of limitation as per the first proviso to Sub-section ( ..... X X X X Extracts X X X X X X X X Extracts X X X X
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