The 1st petitioner's only grievance is against the proceedings concluded in pursuance of the show cause notice issued to the 1st petitioner, evidenced by Exhibit P1; the appellate remedy against which could not be availed of only because of no proper service of notice. Admittedly the 1st petitioner had two addresses, one of the Registered Office and another of the place of business. Exhibit P1 show cause notice was issued only, in the address of the place of business. The 1st petitioner, on receipt of the same, had also filed its objections by Exhibit P2. However, nothing was heard, according to the petitioner, of the proceedings after that.
2. It is admitted that the place of business of the 1st petitioner was closed down, subsequent to Exhibit P2. The 1st petitioner was made aware of the conclusion of proceedings only when a garnishee order, Exhibit P3, was served on the 2nd petitioner, a Company. In the 2nd petitioner Company, two out of the four partners of the 1st petitioner-firm were Directors. Immediately thereafter the 1st petitioner issued a communication, Exhibit P4, contending that they were never served with an order determining the service tax due and sought for a certified copy, so as to avail of the statutory remedies.
3. The learned Standing Counsel for the respondents would submit that the order was sent by post to the place of business, supplied by the 1st petitioner. The same having been returned unserved, it is the contention of the Department that they have no further obligation in the matter, since the Hon'ble Supreme Court in M/s.Madan & Co. v. Wazir Jaivir Chand [AIR 1989 SC 630] held that attempt to evade service on multifarious grounds cannot confer any right on the assessee to contend denial of actual service. In such circumstance, the learned Standing Counsel seeks to sustain the garnishee order, since no appeal has been filed from the order which was finalised long back.
4. M/s.Madan & Co. (supra) was a case under the J & K Houses & Shops Rent Control Act, which provided for a demand for arrears to be served on the tenant, in writing and through registered post. The tenant who receives such notice and makes a consistent default thereafter, was also disentitled from taking protection from eviction under the statute. The notice sent through registered post was held to be sufficient compliance, since the absence of the addressee on two occasions when it was attempted to be served, was found to be not due to the default of the landlord. On the fact situation as also the reasonable, effective, equitable and practical interpretation; it was declared that the word 'served' should be read as sent by post and 'receipt' the attempt of postman to tender the letter at the address. Though service was held to have been effected; the alternate contention of the landlord regarding the affixture made was negatived, in the circumstances of the statute not speaking of such service.
5. In this context it has to be noticed that the address of the 1st petitioner's Registered Office was also known to the respondents, as is evident from Exhibit P5. Exhibit P5 is a communication of the respondent addressed to the Registered Office long before the show cause notice itself was issued. The grievance projected by the petitioner is to be looked into on an analysis of the totality of the circumstances coming to fore. Section 83 of the Finance Act, 1994 contemplates that certain provisions of the Central Excise Act, 1944 would apply to that Act. Section 37C of the Central Excise Act deals with service of decisions, orders, summons, etc. Looking at Section 37C, one of the modes of service is registered post with acknowledgement due. There is no dispute that the Department had attempted service by that mode and if the Section provided only that, then the decision of the Hon'ble Supreme Court would squarely apply. However, the provision specifically took into account the instances where service could not be effected as provided in clause (a); by clause (b), which mandates affixing a copy of the order, summons or notice on some conspicuous part of the place of business. This procedure admittedly has not been followed by the Department.
6. In the above circumstance, the writ petition is only to be allowed, with a direction to the respondent to serve a copy of the order dated 03.08.2007, pursuant to the enquiry conducted on Exhibit P1, within a period of two weeks from the date of receipt of a certified copy of this judgment. I do so. The petitioner should also be given a reasonable time for filing an appeal, definitely with an application for condonation of delay, explaining the circumstances under which the delay was occasioned. In such circumstances there shall be a stay of recovery proceedings for two months from the date of communication of the certified copy of the order, after which the issue shall be covered by the orders passed in appeal, if one is filed and on failure to do so, shall confer the authority with liberty to proceed for recovery.
Writ petition is allowed. No costs.
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Sd/- K.Vinod Chandran Judge.
( true copy )