Shri Mrinal Kanti Saha vs. Commissioner (Appeal) And Ors.

Held

The Court held that the issue of communication of the appellate order is a question of fact that the High Court, in its writ jurisdiction, is not inclined to adjudicate directly, especially when an alternative appellate forum, the CESTAT under Section 86 of the Finance Act, 1994, exists. However, acknowledging the petitioner's assertion of non-receipt and inability to file an appeal, the Court directed the petitioner to approach the office of the Commissioner (Appeals) at Guwahati within two weeks to obtain a copy of the appellate order dated 17.05.2023. The revenue assured that the copy would be supplied. The Court clarified that this supply would not preclude the revenue from raising the plea of limitation before the CESTAT, which would be decided on its own merits. The petitioner was granted two weeks from the supply of the order to prefer an appeal before the CESTAT, with the CESTAT to consider the question of delay on its merits. The Court explicitly stated it had not expressed any opinion on the merits of the case.

Facts

The petitioner, Sri Mrinal Kanti Saha, filed a writ petition challenging recovery notices issued pursuant to a demand of tax, penalty, and interest confirmed by an order in original dated 03.02.2022, which was allegedly affirmed in appeal by an order dated 17.05.2023. The petitioner claimed the appellate order was never communicated to him. The revenue contended that the appellate order was dispatched via speed post on 19.05.2023, with a tracking ID provided. However, the petitioner presented a consignment report indicating "Consignment details not found" for the same tracking ID. The petitioner argued he was unable to prefer an appeal against an uncommunicated order, while the revenue asserted that the petitioner was attempting to evade a significant delay in filing an appeal before the CESTAT.

Key Issues

1. Whether the non-communication of the appellate order dated 17.05.2023 to the petitioner prevents the initiation of recovery proceedings, and if so, what is the consequence? (Question of mixed law and fact, concerning principles of natural justice and procedural fairness). Petitioner's Arguments: The petitioner argued that he was left without recourse to appeal an order that was never communicated. He contended that since recovery proceedings had commenced, he was compelled to approach the High Court. He relied on the India Post consignment report showing "Consignment details not found" to dispute the revenue's claim of dispatch. Revenue's Arguments: The revenue argued that the appellate order was communicated via speed post and the petitioner was denying receipt to avoid the delay in filing an appeal before the CESTAT. They asserted that the recovery proceedings were valid as the order in original was confirmed by the Commissioner (Appeals). The revenue also pointed out that the petitioner had bypassed the alternative remedy of appeal under Section 86 of the Finance Act, 1994, before the CESTAT within the prescribed time.