By TIOL Service

MUMBAI, DEC 19, 2014 : AGAINST service tax demands confirmed by the CST, Mumbai-II the applicant is before the CESTAT with an application for stay and an application for condonation of delay.

In the matter of the COD application the applicant submitted that they never received the SCN or the impugned orders passed in the years 2011 & 2012 and they came to know about the same only on 12.08.2013 and, therefore, obtained the copy of the same on 25/29.10.2013 and appeals were filed on 02.12.2013. Inasmuch as it is pleaded that the delay be condoned. It is also submitted that they came to know from inspection of the records that the SCNs and orders were sent through Speed Post and which is not a valid service in terms of s.37C of the CEA, 1944 as held by the Bombay High Court in the case of Amidev Agro Care Pvt. Ltd. - 2012-TIOL-395-HC-MUM-CX. The applicant contended that the orders are required to be set aside.

The AR submitted that as per the decision of the Allahabad High Court in the case of Mirzapur Electrical Industries Ltd. 2013-TIOL-406-HC-ALL-CX the contention of the learned Counsel is not correct as the High Court has observed that "Registered Post and Speed Post" are same method of service; that objective of sending by registered post is to keep record which is also served by sending article by speed post through the same agency.

It is further submitted that the contention of the applicant that they have not received the SCNs is totally incorrect as the SCN dated 24.03.2009 was sent through “Registered Post vide receipt No. 7474 dated 25.03.2009” and the same has not been returned back to the department by the postal authorities. Further, although the adjudicating authority had given the applicant, opportunities of being heard in person, they failed to appear for the same and thereafter an order-in-original was passed which was served to the applicant through “Speed Post”. It is also submitted that the remaining two SCNs dated 26.03.2010 and 08.04.2011 were served personally on the applicants and, therefore, they cannot say that they have not received those show-cause notices. In support, the AR filed an affidavit and also produced acknowledgement receipt of the said SCNs. Therefore, the AR submitted that the applications for Condonation of Delay are required to be rejected and the appeals are also to be dismissed.

The Bench observed -

++ The impugned orders were sent through “Speed Post” which is not a proper service as held by the Hon'ble Bombay High Court in the case of Amidev Agro Care Pvt. Ltd. (supra). As also the Revenue has failed to produce an acknowledgement receipt of the said order, therefore, we find that the service of the impugned orders by way of “Speed Post” is not a valid service. Accordingly, the applications for COD in filing the appeals are allowed.

++ During the course of arguments, the contention of the learned Counsel for the applicants was that they have not received show cause notices also. Although the SCN dated 24.03.2009 has been sent through “Registered Post” but the acknowledgement receipt is not available but remaining two other SCNs were delivered to the applicants personally to their BPL-BBC Joint Venture firm. The Revenue has produced the evidence to that effect. Therefore, it cannot be said that the applicants were not served the Show-cause notices.

++ We further find that the issue involved in this matter is squarely covered by the decision of M/s Reliance Michigan (JV) 2013-TIOL-795-CESTAT-MUM wherein for the same activity this Tribunal has confirmed the demand against the assessee, therefore, the revenue is having the case on merits.

Holding that the applicant had failed to make out a case for complete waiver of pre deposit, they were directed to make a pre deposit of the service tax as demanded in the show cause notices dated 26.02.2010 and 08.04.2011 and report compliance.

(See 2014-TIOL-2572-CESTAT-MUM)