M/S. Computer Task Information Technology Services Private Limited vs. The Assistant Commissioner Of Customs And Central Tax
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The Petitioner, M/s. Computer Task Information Technology Services Private Limited, filed two writ petitions challenging Orders-in-Original passed by the Assistant Commissioner of Customs and Central Tax. WP No. 36631 of 2024 pertains to the second half of FY 2016-17 (October 2016 to March 2017), with the impugned order dated 29.09.2023. WP No. 36644 of 2024 concerns the first half of FY 2016-17 (April 2016 to September 2016), with the impugned order dated 29.07.2023. The Petitioner claims they only became aware of these orders through bank notices, alleging non-service of proper notices. The Petitioner contends the orders are barred by limitation and the extended period under Section 73(1) is inapplicable. The Respondent argues that communication was sent via email to an employee's ID, and subsequent actions under the CGST Act indicate awareness and continuation of proceedings.
Held
The Court held that the Petitioner has a statutory remedy of appeal and there is no reason to bypass this remedy. The Court found that the provisions of the CGST Act, specifically Section 142(8)(a) and Section 169(1)(c), allow for the continuation of adjudication proceedings instituted under existing laws, and the service of notice provisions under the CGST Act can be applied. Therefore, the argument that service via email is impermissible because Section 37C of the Finance Act, 1994, is silent on electronic modes was rejected. The Court noted that a notice in Form GSTDRC 13 was issued under the CGST Act, further supporting the continuation of proceedings under the new Act. The Court did not decide on the merits of the limitation period or the validity of service, as these are matters for the appellate authority. The writ petitions were disposed of by reserving the liberty to the Petitioner to prefer an appeal, including an application for condonation of delay, with the time spent before the High Court to be excluded for limitation purposes.
Key Issues
1. Whether the writ petitions are maintainable directly before the High Court, given the existence of a statutory remedy of appeal, and if the Petitioner can bypass the appellate process due to alleged non-service of notice? (Article 226 of the Constitution of India, Section 73 of the Finance Act, 1994). 2. Whether the impugned Orders-in-Original, passed under the Service Tax Act (Chapter V of the Finance Act, 1994), are barred by limitation, and if the extended period of limitation under the proviso to Section 73(1) is applicable? (Section 73 of the Finance Act, 1994). 3. Whether the service of notice through email, to an employee's email ID, is a valid mode of service under the existing law (Service Tax Act, 1994) and/or the CGST Act, 2017, considering the Petitioner's claim of non-receipt? (Section 37C of the Central Excise Act, 1944, Section 169 of the CGST Act, 2017). Petitioner's Arguments: The Petitioner argued that the impugned orders were not properly served, leading to their knowledge only through bank notices. They contended that the orders are barred by limitation and the extended period is not applicable. They relied on Section 37C of the Central Excise Act, 1944, arguing it does not permit service via email. They also cited CESTAT and Madras High Court orders. Revenue's Arguments: The Respondent argued that communication was sent to an email ID associated with the company, and subsequent actions under the CGST Act, including a notice in Form GSTDRC 13, indicate the applicability of CGST Act provisions for continuing proceedings. They relied on Sections 142(8)(a) and 169(1)(c) of the CGST Act, 2017, to argue that service provisions under the CGST Act can apply to existing laws.
Sections Cited
Section 73, Section 37C, Section 142(8)(a), Section 169(1)(c)
AI-generated summary — verify with the full judgment below
Cause title — parties, addresses and appearances
The Court made the following: COMMON ORDER
J THE HON'BLE THE ACTING CHIEF JUSTICE SUJOY PAUL AND HE HON'BLE SMT. JUSTICE RENUKA YARA, UIRIT PETITION Nos.3663 1 and 36644 of 2o24 COMMON ORDERlOrall: per the Hon,ble the Acttng Chie,. Justrce f;ujoA pctut) Sri (i. Nare ndra Chetty, learned counsel lbr the petitioner and Sri Dominic Fernandes, learned Senior Stalding counsel for CBIC for rcspond ent No. 1 .
Regard being had to the similitude of the orders rmpugned herein, these wril petitions were analogously heard on admission.
The facts a-e taken from W.p.No.36631 of 2024. This writ petition lile d under Article 226 of the constituti.n of India takes exception to the Order-in-Original No.l46/:2023_S,ll, dated 29.O9.2023 (vvrongly typed as 29.O9.2022 in the impugne,C order).
Learned counser for the petitioner submits that artlrough the impugned order is appealable, since the petitionerr came to know about the impugned Order-in-Original only through bank and notices at no poir:t of time were served on the peritioner. the writ petition can be directly entertained.
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By taking this Court to Section 37C of the Central Excise Act, 7944 (hereinafter referred to as, "the 1944 Act"\, learned counsel for the petitioner submits that the prescribed methods of service of decisions, orders and summons are mentioned in this provision. This provision does not provide any method of service of notices through e-mail'
Criticizing the stand taken by respondent No'1 in the memo dated 29.01.2025, it is submitted that the communication dated 05. lO.2O23 from 'cgst.cntrg@gov.in" was addressed to "sekhar@jayantsadashiv.com", which may be the e-mail ID of an employee of the company, but it is not the e-mail ID of the company and consequently, the communication through e-mail is totally unknown in the teeth of Section 37C of the 1944 Act' 7 . Learned .counsel for the petitioner placed reliance on an order of the Customs, Excise and Service Tax Appellate Tribunal (CESTAT), Allahabad, in M/s. Samsung India Electronics private Liurited v. comrnissioner of central Excise, Noidal (Service Tax APPeal No.71611/201,9, dated No.50566 of 2Ol4 (DB), Final Order r , I ' 20l9 (t l) TMI 1204 l8.O7.2}lgl, and urged that the orde of 5 the High Courl of Madras in OSA Shipping Rrt. Ltd. v Commissi.oner of Central E:rcise, Chennai2, 'tvas considered in paragraph 3 of t-re said order B. L,earned Senior Standing Counsel for CBIC, on the other hand, sr-Lbmits that the communication dated C5.1O.2023 regarding ttre Order-in-Original was sient to "sekhar@)a1,ants adashiv.com". From the said e-mail ID on behalf of the cornpany a mail was sent on 06.L0.202,1. No additional affi davit h as bet:t-t filed stating that "sekhar@ja1'antsadirshiv.com" is not an ID ol an employee of the company ancl t}'Lerefore, it cannot be said -hat the company was not aware of tht', Order-in- Original till it w:Ls communicated through the bank.
By p,lacing reliance on Sections 1a2(8)(a) and 1691 1)(c) of the Central Goods and Services Tax Act, 2O17 (hereinafter referred to as, "the OGST Act"), learned Senior Standing Counsel for CBIC submits that a :ombined reading of both the provisions makes it clear that the rr ode of service prescribed in the CGST .A,ct can be made applicable for recovery of arrears of tax under any previous law. t:ot: 1;t:.y Er. r' r86 (Mr(1.) \
6
The parties have confined their arguments to the extent indicated above and no other point is pressed 11
We have heard the parties at length and perused the record'
Section 37C of the 1944 Act reads thus:- "37C. Service of decisions, orders, summons' etc'-- (1) Any decision or order passed or any summons or notice issued under this Act or the rules made thereunder, shall be served,-- by tendering the decision, order, summons or notice, or sending it by registered post with acknowledgment due or by speed post with proof of delivery or by courier approved by the Central Board of Excise and Customs constituted under the Central Boards of Revenue Act, 1963 (54 of 1963)], to the person for whom it is intended or his authorised agent, if anY; (a) (b) (c) if the decision, order, summons or notice cannot be served in the manner provided in clause (a), by affrxing a copy thereof to some conspicuous pu..t of th. factory or warehouse or other place of tusiness or usual place of residence of the person for whom such decision, order, summons or notice, as the case may be, is intended; if the decision, order, summons or notice cannot be served in the malner provided in clauses (a) and (b), by affrxing a copy thereof on the notice- board of the officer or authority who or which passed such decision or order or issued such summons or notice. (2) Every decision or order passed or any summons or notice issued under this Act or the rules made thereunder' shall be deemed to have been served on the date on which the decision, order, summons or notice is tendered or delivered by post or courier referred to in sub section (1) or a a- 7 l,]pJ thereof is affixed in the manner prov.ided in r;ub_section 13. 'lhe C(]ST Act came into being in the 5,ear 2O.tZ andSection 742 thereof deals with .miscellaneous transitional l:rrovisions,. It rs apposite to consider sub_section CGST,{ct, which reads thus: (Emphasis r;upplied) Section 1t;9(l)(c) of the CGST Act reads th.us:_ - Ioq( lltc). by send. *q#H ji:,itra"i, ffi . ^*,ffi
A conjoint reading of Sections la2@)(a)and 169( CGST Act r;hows that the argument of the learneci senio Counsel for CBIC has substantial force. The pro.rdsion \\
A rlinutr reading of the aforesaid provil;ion mzrkes it clear that any assesliment or adjudication proceedin€rs institrrted before, or after l.he apcointed day can continue and the am()unt will be recoverat,le as zrn arrear of tax under the CGST ,Act. (8)(a) of Secricn 142 of the 15. 1)(c) of the r Standing r,:lating \ : I l i I " t a2g)(al where in pursuance of an assa:i.sment or a,Cjudtca tiott proceedings instituted., be aikr Jh, DOtnted dau annount , lntere or ,nnd.er the re. on or taut, anu fuin the Derson, the same sho.tl, un re'co UCrable Iess recouered under th.e existing law, be recouered, as an ariear of tdx und.er this A ) t ct q.nd the b admissi amount so recovered e as lnput tax credit under this Act." shall not be i I I
8 service of notice provided under the CGST Act can be applied in view of Section 1a2(8)(a) of the CGST Act in relation to any oth.er eisting lattt, whicn includes the 7944 Act' Thus' we are unable .to persuade ourselves with the line of argument of the learned counsel for the petitioner that since Section 37C of the 1944 Act is silent about the electronic mode of service through e-mail etc'' the said mode is impermissible or not acceptable'
So far the order of the CESTAT' Allahabad' in M/s. Samsuag India Electronics Private Limited (supra) is concerned, paragraph 3 of the said order only gives a reference to the order of the High Court of Madras in OSA Shipping Pvt' Ltd' (supra). But, the said paragraph does not deal with the aspect of the validity of service of notice through e-mail mode' Apart from that, in the said case, the notices etc' ' were issued before the CGST Act came'into being' Thus' that order is' even otherwise' of no assistance
Apart from the above' the petitioner was served with a notice in Form GSTDRC 13 on O8'11'2024 issued under the CGST Act' This action also supports the contention that in view of Section tl
9 1a2(B)(a) of tht: CGST Act, adjudication proceedings instituted under the existirg law shall continue under the CGST A,ct.
The petitioner has a statutory remedy of prr:ferring an appeal. 'Ihe pt:titioner can avail the said remedy. IMe find no reason to short circuit the appellate remedy alrd enr_ertain the petition dr.rectly.
The u'rit petitions are accordingly disposed of b.,, reserving the liberQr to tlLe petitioner to prefer an appeal. The petitioner may prefer the appeal with an application for corrdonation of delay by showir:Lg the date of knowledge. The appellate auttrority shall consider it in accordalce with law. The time consurrred before this Cour: shall not be counted for the purpose of corrnting the limitation. No order as to costs. Miscellale,tus petitions pending, if any, shzrll stan<.[ closed. . A. SRINIVASA REDDY ASSISTANT REGISTRAR //// SECTION OFFICER _l one fair copv to THE HON'BLE THE AcflNG cHrEF JUSTTCE suJoy PAUL (For His Lordship,s Kind perusal) one fair copy to THE HoN,BLE srur. i}&rce RENUKA vARA (For His Lordship,s Kind perusal) To, 'l . The Ass'istant commissioner of customs and centrar l-ax, Markaiqiri GST Division, rr,4edct- al GST Commissi onera,te, aJzlzl t3 ;il;,' iffi"iiil; X;i", Towers, Sri Sai Enctave, old Bowenpattv,' 5""u,ia"rro,ri '.;oti)i;"' ""''r'
The_S^ecretary (:inance), Ministry of Finance, North Block, New Delhi - 110001. I
The Branch [Vlanager, Bank of America, Salarpuria Windsor, 5th Floor,.B- Wing, No.-3, Ulsoor Road, Bangalore-560042, Karnataka State. 4. 11 L.R. Copies.
The Under Secretary, Union of lndia, Ministry of Law, Justice and Company Affairs, New Delhi.
The Secretary, Telangana Advocates Association Library, High Court for the State of Telangana at Hyderabad.
One CC to SRI G NARENDRA CHETTY Advocate [OPUC]
One CC to SRl. DOMINIC FERNANDES (senior standing counsel for CBIC) toPUCl
One CC to Sri Gadi Praveen Kumar, Deputy Solicitor General of lpdia [OPUC] 10.Two CD Copies KKS GJP -';:r i
--- HIGH COURT DATED:1810212025 COMMON ORDER WP.Nos,36631 and 36644 of 2024 DISPOSING OF THE WRIT PETITION WITHOUT COSTS \ \ S rArc' i 2o l.'i z"?5 q zo ,t t + o P;. .-! (', 42 1.r4 2.f/+74{ i 19.
Reproduced from the public record of the Telangana High Court. Verify against the court's own copy before relying on it. Income tax judgments are on bharattax.net.