Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE T.R.RAVI TUESDAY, THE 7TH DAY OF FEBRUARY 2023 / 18TH MAGHA, 1944 WP(C) NO. 16650 OF 2022 PETITIONER:
M/S. GIFT INDIA KURIES PVT. LTD IV/491K, GIFT INDIA TOWERS, ALAPPAD P.O., THRISSUR - 680 641, REPRESENTED BY ITS MANAGING DIRECTOR, K.A. SHAJI.
BY ADVS.
HARISANKAR V. MENON MEERA V.MENON K.KRISHNA R.SREEJITH RESPONDENTS:
1 ASSISTANT COMMISSIONER, OFFICE OF THE ASSISTANT COMMISSIONER OF CENTRAL TAX & CENTRAL EXCISE, CHALAKUDY DIVISION, 2ND FLOOR, MAJESTIC SQUARE, NEAR POST OFFICE, CHALAKUDY, THRISSUR - 680 307.
2 COMMISSIONER (APPEALS), CENTRAL BOARD OF INDIRECT TAXES, CENTRAL TAX, CENTRAL EXCISE & CUSTOMS, CENTRAL REVENUE BUILDING, I.S. PRESS ROAD, KOCHI, ERNAKULAM - 682 018.
3 CHIEF COMMISSIONER, CENTRAL TAX & CENTRAL EXCISE, CENTRAL REVENUE BUILDING, I.S. PRESS ROAD, KOCHI, ERNAKULAM - 682 018.
4 CENTRAL BOARD OF INDIRECT TAXES & CUSTOMS, GST POLICY WING, NORTH BLOCK, NEW DELHI - 110 001, REPRESENTED BY PRINCIPAL COMMISSIONER (GST).
5 UNION OF INDIA, REPRESENTED BY SECRETARY TO GOVERNMENT, MINISTRY OF FINANCE (DEPARTMENT OF REVENUE), NORTH BLOCK, NEW DELHI - 110 001.
WP(C) NO. 16650 OF 2022 2 BY ADVS.
SRI.THOMAS MATHEW NELLIMOOTTIL, SC, CENTRAL BOARD OF EXCISE & CUSTOMS NAVANEETH.N.NATH SRI. S. MANU, DSGI.
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 07.02.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C) NO. 16650 OF 2022 3 T.R. RAVI, J.
-------------------------------------------- W.P.(C) No.16650 of 2022 -------------------------------------------- Dated this the 07th day of February, 2023 JUDGMENT The prayer in the writ petition is for quashing Ext.P8 order and for a direction to the 2nd respondent to consider Ext.P7 appeal filed by the petitioner afresh. The case of the petitioner is that Ext.P8 has been issued without hearing the petitioner. A reading of Ext.P8 would show that the order has been issued during the Covid-19 Pandemic.
2.
The Standing Counsel on instructions submitted that the petitioner had been informed about the hearing by E-mail and that the petitioner did not appear through Video Conference which was the mode of hearing available at that point of time.
3.
The claim of the petitioner is for refund and there is no reason to believe that the petitioner would have chosen not to participate in the hearing since the amount is to be received by the petitioner. It is seen from Ext.P8 order that the petitioner had not participated in the hearing. The order also says that no fruitful purpose will be served by affording the petitioner any further
WP(C) NO. 16650 OF 2022 4 opportunity and the matter can be decided on the basis of available evidence on record. Since the order is issued without hearing the petitioner and the hearing was at a point of time when the Pandemic was affecting the entire country, I am of the opinion that the petitioner ought to be given a proper chance to represent their case.
This is all the more so, since there is no case for the respondents that several opportunities were given to the petitioner and he did not take part in the hearing. As seen from the records, there is only one date of hearing which had been communicated even according to the respondents.
In the above circumstances, the writ petition is allowed. Ext.P8 is quashed. There will be a direction to the 2nd respondent to consider and dispose of Ext.P7 appeal after hearing the petitioner, at the earliest, at any rate within two months from the date of receipt of a copy of this judgment.
Sd/- T.R.RAVI JUDGE mpm
WP(C) NO. 16650 OF 2022 5 APPENDIX OF WP(C) 16650/2022 PETITIONER’S EXHIBITS Exhibit P1 COPY OF DECLARATION APPENDIX SUBMITTED BY THE PETITIONER DATED 31-12-2013.
Exhibit P2 COPY OF ACKNOWLEDGMENT OF DECLARATION DATED 31.12.2013.
Exhibit P3 COPY OF APPLICATION FOR REFUND OF SERVICE TAX DATED 04-06-2018.
Exhibit P4 COPY OF NOTICE ISSUED BY THE 1ST RESPONDENT DATED 28.08.2018.
Exhibit P5 COPY OF REPLY FILED BY THE PETITIONER DATED 24.10.2018.
Exhibit P6 COPY OF ORDER ISSUED BY THE 1ST RESPONDENT DATED 19.06.2019.
Exhibit P7 COPY OF APPEAL FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT DATED 07.08.2019.
Exhibit P8 COPY OF ORDER ISSUED BY THE 2ND RESPONDENT DATED 25.02.2021.
Exhibit P9 COPY OF ORDER ISSUED BY THE 2ND RESPONDENT DATED 04.09.2019.