TaxTMI 
TaxTMI 
2021 (10) TMI 890
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....ucts. The petitioner was with one M/s. W.S. Industries Unit for over three decades. M/s. W.S. Industries Group was manufacturing range of products for Transmission and Distribution Applications of Power Sector. 2.2. The petitioner joined Diamond Power Transformers Ltd. (DPTL), Vadodara in August, 2012 as a Director (Operations). He was only an employee with designation as Director (Operations) and has no Board of Directors level position in DPTL. He was heading the operations of the transformer business, more on power transformer business for power transformer of unit-II and overseeing operation of distribution transformer of unit-I. It was 100% subsidiary of the Diamond Power Infrastructure Ltd. (DPIL), Finance and Accounts, Excise, Sale Tax, Service Tax, etc. under the preview of corporate office. 2.3. The DPTL owned two units, first one located at Ranoli, District Vadodara, Gujarat and the second unit located at Village Samiyala, Padra Taluka, District Vadodara. The petitioner was functioning from Samiyala factory of DPTL. 2.4. It is the case of the petitioner that the officers of the Directorate General of Goods and Services Tax Intelligence, Vadodara Regional Unit und....
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....f show cause notice to the petitioner, the proceedings could not have been proceeded ex-parte, more particularly, when the personal penalty has been imposed on the petitioner without following any principles of natural justice. He has reiterated his stand that he was only a technocrat in the company and for any contravention made by the company, he cannot be held liable. 2.8. It is also his case that though the appeal is available against this order in original before the CESTAT, there is a mandate of ore-depositing of 7.5% of the amount of penalty. Moreover, this being a challenge to the non-observation of the principles of natural justice, there is a need for the Court to entertain this petition without insisting on the taking recourse to the alternative remedy. 2.9. It is also the case of the petitioner that the respondent Nos.2 and 3 have acted against the petitioner in complete breach of principles of natural justice and order of imposing personal penalty on the petitioner is illegal and unfair, as there can be no adjudication of show cause notice without service of notice with all relied documents and personal hearing of the notices. Moreover, this being a challenge to ....
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.... personal hearing were sent to the petitioner at the address shown in the show cause notice, and the same have returned "unattended". Morever, The Assistant Director, Directorate General of Goods and Service Tax, Intelligence, Regional Unit, Vadodara vide No.Letter No.INV/DGCEI/BRU/11/2014-15 dated 06.12.2017 informed the office of respondent No.3 that copy of show cause notice in respect of co-noticee No.15, i.e. the petitioner under instant petition has been served through affixing the same on the Notice Board of DGGSTI, Regional Unit, Vadodara. 3.4. It is also the say of the respondent department that the respondent No.3 have acted against the petitioner in complete breach of principle of natural justice and imposed penalty is not factually correct. The respondent No.3 has acted in accordance with law as the adjudicating authority has sent the letters of personal hearing to the known address of the petitioner and the same have been returned undelivered by the postal department. As per the records of the Adjudicating Authority, the respondent No.3, the residential address of the petitioner at Chennai was not available and hence letters of personal hearing could not send to the....
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...., there will be a requirement of deposit of certain percentage of duty demanded or the penalty imposed before filing the appeal. It is the tribunal or the Commissioner (Appeals) as the case may be, who is not required to entertain any appeal against the decision unless the appellant has deposited seven and a half percent of the duty are in dispute, or penalty, where such penalty is in dispute, in pursuance of the decision or order appealed against. The Central Excise Act, 1944 were amended by the Parliament of India in the year 2014 and the right to appeal has been restricted till an appellant pays the pre-deposit. These provisions are absolute and no discretion has been vested to relax these provisions to any authority to allow hearing of appeal unless the statutory pre-deposit is paid. 7. On the part of the respondent, it is urged that indirectly by invoking extraordinary powers of this Court under Article 226 of the Constitution of India what is being sought is to overreach the process of Section 35(F) of the Central Excise Act. We are conscious of the fact that the provisions of Section 35(B) stipulates that any person if is aggrieved by the decision or order passed by the P....
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....send the show cause notice and the notices of personal hearing therefore, upon the last known address of the petitioner is also unsustainable as the department of Income Tax already had details. The penalty imposed upon the petitioner in the order in original is to the tune of Rs. 4,50,000/-. Any penalty imposed personally on the person cannot be saddled, unless due opportunity is given. Here not only there is a question of availing opportunity of hearing, the very service of the show cause notice is also seriously questioned and we also could notice from the pleadings before us that neither the show cause notice was served upon the petitioner nor was he served notice of personal hearing. As the director of the company, even if his conduct is found questionable and worthy of initiating any legal proceedings personally, giving of opportunity to the company or affixing show cause notice and the notices of personal hearing of the director at the company premise would not simply amount to appropriate or sufficient service to the present petitioner. It is to be noted that show cause notice is of the year 2017 and the petitioner was in service only till 2016. Till he was in the service, ....
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....y. In the absence of any proof of delivery, it cannot be said that there is effective service of notice, as contemplated under Section 37C of the Act. In the absence of service of notice of personal hearing, the petitioners or their representative could not remain present before the adjudicating authority during the course of personal hearing and hence, the impugned order which has been passed ex parte is clearly in breach of principles of natural justice. 11. So far as maintainability of the petition is concerned as per the objection rasied by the rewspondent department that alternative remedy of preferring appeal has not been availed, is concerned in the case of Messers CTM Technical Textiles LTD Versus Union of India, reported in 2020 (12) TMI 1100 this Court has observed and held as under :- "When the statute provides for a particular procedure, the authority has to follow the same and cannot be permitted to act in contravention of the same. It has been hitherto uncontroverted legal position that where a statute is required to do something in a certain way, the thing must be done in that way or not at all. The other methods or mode of performance are impliedly and n....