2019 (11) TMI 959 - HC - Service Tax

Court suspends recovery actions due to lack of service; petitioner allowed to appeal within four weeks

The court directed the respondents to suspend coercive recovery actions for eight weeks due to lack of acknowledgment of service of the appellate order on ... Service of appellate order - stay of recovery pending service - moulding of equitable relief - permissibility of filing appeal notwithstanding non receipt of original order - acceptance of xerox copy in appellate proceedingsService of appellate order - There was no service of the Commissioner (Appeals) order on the petitioner and the respondents admitted lack of postal acknowledgment. - HELD THAT: - The respondents, in their counter, admitted that there was no acknowledgment from the postal department for service of the Commissioner (Appeals) order and were silent on effective service. Learned counsel for the respondents did not dispute that the original order had not been served upon the petitioner. In these circumstances the Court treated non service as an operative fact bearing on the legality of coercive recovery initiated against the petitioner. [Paras 3, 4]Finding recorded of non service of the appellate order on the petitioner and that this deficiency is material to the recovery action initiated.Stay of recovery pending service - Recovery proceedings were ordered to be kept in abeyance for a limited period because the petitioner had not been served with the appellate order and reasonably believed his appeal remained pending. - HELD THAT: - On the basis that the petitioner was under the bona fide impression his appeal was pending disposal and that coercive recovery commenced only when he discovered the appellate order, the Court held that initiating recovery in the face of admitted non service would be inappropriate. The Court exercised its supervisory jurisdiction to prevent immediate coercive action while the substantive appellate remedy was made available. [Paras 5]Respondents directed to keep recovery action in abeyance for eight weeks from the date of the order.Moulding of equitable relief - permissibility of filing appeal notwithstanding non receipt of original order - acceptance of xerox copy in appellate proceedings - Petitioner was permitted to file an appeal against the Commissioner (Appeals) order dated 28.09.2009 within a specified time; the Tribunal was directed not to insist on production of the original order and to accept a xerox copy; the appeal was directed to be heard expeditiously. - HELD THAT: - While the writ prayers to quash the appellate and assessment orders were not granted, the Court moulded relief by allowing the petitioner to pursue the statutory appellate remedy. Recognising that the original order was not served, the Court authorised filing of the appeal within four weeks on the basis of a xerox copy and directed the Registry of the Tribunal to receive such appeal without insisting on the original document, subject to the appeal being otherwise in order. The Court further directed that the Tribunal hear and dispose of the appeal as expeditiously as possible. [Paras 6]Petitioner permitted to file appeal within four weeks challenging the Commissioner (Appeals) order dated 28.09.2009; Tribunal to accept xerox copy in lieu of the original and to dispose of the appeal expeditiously.Final Conclusion: Writ petition disposed by recording non service of the appellate order, directing an eight week abeyance of recovery, permitting the petitioner to file an appeal within four weeks on the basis of a xerox copy (the Tribunal not to insist on the original), and directing the Tribunal to hear and dispose of the appeal expeditiously; no costs and connected petitions closed. 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.