TaxTMI 
TaxTMI 
TaxTMI 
2025 (8) TMI 1208
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....Tax liability amounting to Rs.5,99,042/- on the differential value of Rs.41,31,324/- as the Appellant discharged his tax liability against an amount of Rs.24,26,668/- only during the said financial year 2015-16. In view of the above, a Show Cause Notice SCN dated 26.03.2021 was issued proposing demand of duty under Section 73(1) of the Finance Act, 1994, alongwith applicable interest and for imposition of penalty. The case was adjudicated vide order dated 19.12.2021, without hearing the Appellant, and without any written reply to the SCN and the demand as proposed in the SCN was confirmed along with interest and penalty. The Appellant filed appeal before the Commissioner (Appeals) who rejected the appeal and upheld the adjudication order. Being aggrieved with the order of the Appellate Authority, the present appeal has been filed before the Tribunal. 3. Ms. Stuti Saggi, learned Counsel of the Appellant argued the case and contended that the impugned order has been passed without analyzing the facts involved in the case. Main emphasis of her submission is that the SCN was served upon the Appellant on 27.02.2022 along with ex-parte adjudication order dated 19.12.2021. It is submitte....
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....hould not pay the amount specified in the notice : Provided that where any service tax has not been levied or paid or has been short-levied or short-paid or erroneously refunded by reason of - (a) fraud; or (b) collusion; or (c) wilful mis-statement; or (d) suppression of facts; or (e) contravention of any of the provisions of this Chapter or of the rules made thereunder with intent to evade payment of service tax, by the person chargeable with the service tax or his agent, the provisions of this sub-section shall have effect, as if, for the words "thirty months", the words "five years" had been substituted." 8. A bare perusal of the above provisions clearly reveal that for demand of service tax, service of the SCN upon the assessee is an essential requirement. No demand can be raised without service of SCN. In the present case, SCN was issued but there is no evidence of service on the Appellant. Further, as per the provisions of Section 73(2) of the Finance Act,1994, "The Central Excise Officer shall, after considering the representation, if any, made by the person on whom notice is served under sub-section (1), determine the amount of service tax due....". It makes it clea....
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.... of the above judgment would be equally applicable in the present case and the impugned order is not sustainable. The same view has also been held in the case of Pranatharthiharan Sreedharan [2021-TIOL-2170-HC-AHM-CX] by the Hon'ble Gujarat High Court. It has been held that order passed without service of SCN is not sustainable. In the case of Andhra Agencies vs. State of AP [2008-TIOL-228-SC-CT], the Hon'ble Supreme Court has held that the order passed without hearing is not maintainable. 9. The manner of service of a SCN was apparently not followed in the case in hand. Manner of service of any decision or order passed or any summons or notices is provided under Section 37C of the Central Excise Act, 1944 which was also applicable in Service Tax matter as laid down under Section 83 of the Finance Act, 1994. For easy reference Section 37C is reproduced below: - "1) Any decision or order passed or any summons or notices issued under this Act or the rules made thereunder, shall be served, - (a) by tendering the decision, order, summons or notice, or sending it by registered post with acknowledgment due 2[or by speed post with proof of delivery or by courier approved by the Centr....
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....that simply sending notice, order etc by Registered Post is not compliance of Section 37C of the Central Excise Act, 1944. The order passed is set aside. It is further noticed that in the case of New Drug and Chemical Co [2015-TIOL-1089-HC-BOM], the Hon'ble High Court of Bombay has held that in lack of acknowledgment of service of the SCN, the service is not valid. In the matter of order passed without proper service of notice, the Tribunal in the case of Baldeep Singh [2021-TIOL-234-CES-DEL] has held as below : - "Revenue failed to produce the proof of delivery of the show cause notice. Further, from perusal of the order-in-original, I find that the Adjudicating Authority have not recorded satisfaction of service of show cause notice and have proceeded to pass the ex-parte order-in-original, which is held to be a nullity in the eyes of law. Substituted service by way of affixation on the notice board of the Department is by way of last resort. In the facts of the present case, I find that without identifying, the noticee, nor taking any reasonable measures of any substituted service as mentioned in clause (d) and (e) of Section 153(1), the Adjudicating Authority have proceeded t....