Global Construction Through Its Proprietor Mukesh Tripathi vs. Union Of INDIA Through Its Pr Commissioner Central Goods And Services Tax

Facts

The petitioners, Global Construction and Mukesh Tripathi, had their bank account frozen by a garnishee notice dated September 30, 2021, issued under Section 79 of the CGST Act, 2017. This followed an order-in-original dated December 18, 2018. The petitioners had appealed the order-in-original on September 29, 2021. Their appeal was dismissed by the Commissioner (Appeals) on December 23, 2021, on grounds of limitation, being filed beyond the statutory 60 days and the condonable period of 30 days under Section 85 of the Finance Act, 1994. The petitioners contended that the order-in-original was not properly served due to an incorrect or incomplete address on the dispatch register, and that the certified copy of the order was provided on October 19, 2020, during the COVID-19 period when the Supreme Court had granted relaxations.

Held

The Court held that the appeal was rejected solely on the grounds of limitation. However, two critical facts emerged: firstly, the certified copy of the order-in-original was provided to the appellant on October 19, 2020, which was during the period when the Supreme Court's directions in Suo Motu Writ Petition (Civil) No. 03/2020 regarding relaxation of limitation periods due to COVID-19 lockdown were in effect. Secondly, information obtained under RTI indicated that the dispatch register and tracking report for the speed post did not contain the petitioner's complete address. The Court noted that the correct address was M/s Global Construction (A Proprietorship Firm), Qr. No.1304, Sector-1/C, Bokaro Steel City, District Bokaro (Jharkhand), PIN 827001, whereas the dispatch showed only "M/s Global Construction, Bokaro." The Court found that notices were issued on an incorrect or inadequate address, and therefore, valid service of the order-in-original could not be presumed, especially in light of Section 27 of the General Clauses Act. Consequently, the grounds for rejecting the memo of appeal were found untenable. The appellate order was set aside, and the matter was remanded to the appellate authority for fresh consideration in accordance with the law. The Court explicitly stated that it had not gone into the merits of the case concerning the imposition of tax, penalty, and interest. The writ petition was allowed.

Key Issues

1. Whether the appeal filed by the petitioners before the Commissioner (Appeals) was barred by limitation under Section 85 of the Finance Act, 1994, considering the purported non-service of the order-in-original? 2. Whether the petitioners are entitled to condonation of delay in filing the appeal, particularly in light of the COVID-19 pandemic and the directions issued by the Supreme Court in Suo Motu Writ Petition (Civil) No. 03/2020? Petitioner's Arguments: The petitioners argued that the order-in-original was not properly served because the address on the dispatch register was incorrect or incomplete, as evidenced by RTI information. They contended that no presumption of service could be drawn, and a valuable right of appeal should not be denied. They also argued that if the order was served on October 19, 2020, they would be entitled to delay condonation due to COVID-19 relaxations. They sought a remand to the appellate authority for a hearing on merits. Respondent's Arguments: The respondents argued that the appellate authority correctly discarded the plea of non-service based on EMS Speed Post tracking showing dispatch on December 19, 2018, and delivery on December 21, 2018. They asserted that the appeal was time-barred much before the lockdown, rendering the COVID-19 relaxations inapplicable. They also stated that the show-cause notice was served at the same address, and the petitioners failed to appear before the adjudicating officer, leading to the order-in-original. They relied on Section 37-C of the Central Excise Act regarding service of notice.