TaxTMI 
TaxTMI 
2026 (7) TMI 1002
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....n the re-quantified amount of demand. 2. At the outset learned counsel for the appellant raised a preliminary submission, which according to him, goes to the very root of the matter. Learned counsel contended that the show cause notice dated 28.12.2020, on the basis of which the entire proceedings have been initiated, was never served upon the appellant. Consequently, the appellant had no knowledge either of the contents of the show cause notice or the initiation of adjudicating proceedings and resultantly the Order-in-Original dated 29.6.2024 came to be passed ex-parte. 3. According to learned counsel, the said order was served upon the appellant on 5.7.2024 and only then the appellant became aware about the existence of the show cau....
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....t an empty formality. It is the very foundation of adjudication proceedings u/s. 73 ibid. A notice calling upon a person to explain why tax, interest and penalty should not be recovered, must necessarily be brought to the notice of such person in the manner known to law. Unless the notice is served, the noticee is deprived of the valuable statutory right to submit a reply, produce evidence, contest the allegations and avail an effective opportunity of personal hearing. Any adjudication undertaken without such service strikes at the root of the proceedings and constitutes a clear violation of the principles of natural justice. 6. The appellant has placed on record the affidavit dated 24.01.2026 stating on oath that the show cause notice d....
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.... dated 28 December 2020 was issued under DIN No. 20201268UC00001631DD to M/s Anil Lingappa palle. Office Copy of SCN enclosed for ready reference which do not have any dispatch number so its dispatch could not be verified. This is for your kind information and necessary action please. Encl. As above (Manisha S Patil) Assistant Commissioner (L&T) CGST, Pune I " 9. Significantly, this communication does not disclose any dispatch particulars, postal acknowledgment, speed post receipt, acknowledgment due card, delivery report or any other documentary evidence demonstrating that the show cause notice dated 28.12.2020 had ever been dispatched or served upon the appellant. The department has expressed its inability to....
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....ave effect, as if, for the words "eighteen months", the words "five years" had been substituted" (Emphasis supplied) 11. The language employed in section 73 assumes significance. The expression employed in is "serve notice" and not merely "issue notice". The distinction is deliberate and carries legal significance. The legislature has consciously used the expression "serve notice". The statutory requirement is satisfied only when the notice is duly served in accordance with law. The burden of proving such service squarely rests upon the department. In the present case, despite a specific direction of this Tribunal, the department has failed to produce any dispatch register, postal receipt, acknowledgment due, delivery report or any ot....
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....ce. In the face of the department's inability to produce even the basic proof of dispatch or service despite a specific direction of this Tribunal, there is no reason to disbelieve the appellant's categorical assertion. 14. The finding recorded by learned Commissioner (Appeals) about subsequent opportunities granted to appellant during appellate proceedings cured the defect of non-service of the show cause notice is legally untenable. The right to contest the allegations commences at the stage of the show cause notice itself. An appellate proceeding cannot substitute the statutory adjudication contemplated under Section 73 nor can it retrospectively validate proceedings initiated in violation of the mandatory requirement of service. 1....