2021 (12) TMI 1039 - HC - GST

Court protects petitioner's appeal rights despite delayed order receipt. Bank guarantee invocation on hold.

The Court concluded that the petitioner was deemed to have received the order under Section 129(3) of the Central Goods and Services Tax Act on ... Service of order - Original copy of order was not received or lost - Direction to serve a copy of an Order issued under Section 129(3) of the Central Goods and Services Tax Act - Non-invocation of bank guarantee furnished by the petitioner - whether petitioner was in receipt of the order issued by the first respondent under Section 129(3) of the Act? - HELD THAT:- 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. In this context, this Court notices the pleading of the petitioner that he had received the notice for hearing scheduled on 24.01.2020. The copy of dispatch register showing that the order was dispatched on 28.01.2020 and the copy of acknowledgement card produced as Ext.R1(c), fortifies the above conclusion - the order under Section 129(3) of the Act was served on the petitioner on 03.02.2020. Having regard to the contention that petitioner had not received the order or that he may have misplaced the order due to which petitioner ought to be given a certified copy to enable him to pursue appropriate statutory remedy is a contention which merits consideration - 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. The first respondent is directed to issue a certified copy of the order to the petitioner in accordance with law forthwith - petition disposed off. Issues:1. Whether the petitioner received the order issued under Section 129(3) of the Central Goods and Services Tax ActRs.2. Whether the petitioner's right to appeal against the final order can be curtailed due to non-receipt or loss of the orderRs.3. Whether the petitioner is entitled to a certified copy of the order to pursue statutory remediesRs.4. Whether the invocation of the bank guarantee should be kept in abeyanceRs.Analysis:Issue 1:The primary issue addressed in the judgment is whether the petitioner received the order issued under Section 129(3) of the Act. The Court examined the provisions of Section 169 regarding the service of notice, emphasizing that service can be deemed to have occurred through registered post with acknowledgment due. The Court noted that the order was dispatched on 28.01.2020 and the acknowledgment card showed receipt by the petitioner on 03.02.2020. Therefore, the Court concluded that the order under Section 129(3) was served on the petitioner on 03.02.2020.Issue 2 and 3:The Court then considered the petitioner's contention that despite the deemed service of the order, the petitioner may have not received or misplaced it, thus warranting a certified copy to pursue statutory remedies. The petitioner cited the Supreme Court's order regarding the condonation of limitation periods. The Court acknowledged the petitioner's right to appeal and directed the first respondent to issue a certified copy of the order to the petitioner promptly. The Court emphasized that the petitioner should not be deprived of the right to appeal due to non-receipt or loss of the order.Issue 4:Lastly, the Court addressed the issue of keeping the invocation of the bank guarantee in abeyance. The Court exercised its discretion to direct the first respondent to provide a certified copy to the petitioner, thereby allowing the petitioner to pursue statutory remedies. Consequently, the Court ordered that the invocation of the bank guarantee be put on hold and kept alive for 60 days from the judgment date to enable the petitioner to pursue statutory remedies, if available.In conclusion, the judgment resolved the issues by ensuring the petitioner's right to appeal, directing the issuance of a certified copy of the order, and temporarily halting the invocation of the bank guarantee to facilitate the petitioner's pursuit of statutory remedies.