Point of Law :Under clause (a) of sub-section (1) of Section 37C of the Act, in case of service of notice by speed post, the same has to be with proof of delivery.

ORDER :

RAJENDRA M. SAREEN, J.

1. This is a petition where the challenge is made to the legality and validity of ex-parte order in original no. VADEXCUS- 002-COM-018-18-19 dated 28.02.2019 passed by respondent no.3 – Principal Commissioner of Central Excise and GST, Vadodara-II imposing personal penalty on the petitioner without service of show cause notice and without service of notices of personal hearing.

2. Briefly the facts shorn of details are as follows: -

2.1. The petitioner is a technocrat with over 37 years experience in manufacturing industries. He is an electrical engineer having experience in manufacturing of electric products. The petitioner was with one M/s. W.S. Industries Unit for over three decades. M/s. W.S. Industries Group was manufacturing range of products for Transmission and Distribution Applications of Power Sector.

2.2. The petitioner joined Diamond Power Transformers Ltd. (DPTL), Vadodara in August, 2012 as a Director (Operations). He was only an employee with designation as Director (Operations) and has no Board of Directors level position in DPTL. He was heading the operations of the transformer business, more on power transformer business for power transformer of unit-II and overseeing operation of distribution transformer of unit-I. It was 100% subsidiary of the Diamond Power Infrastructure Ltd. (DPIL), Finance and Accounts, Excise, Sale Tax, Service Tax, etc. under the preview of corporate office.

2.3. The DPTL owned two units, first one located at Ranoli, District Vadodara, Gujarat and the second unit located at Village Samiyala, Padra Taluka, District Vadodara. The petitioner was functioning from Samiyala factory of DPTL.

2.4. It is the case of the petitioner that the officers of the Directorate General of Goods and Services Tax Intelligence, Vadodara Regional Unit undertook search operations at the factory premises of DPTL on 23.09.2014. It is urged that the officer searched both the factory premises of DPTL and resumed voluminous documents alleged to be incriminating in nature. Various statements have been recorded of the different persons which included the petitioner also. He later on left DPTL in June 2016 due to ailment of his mother and settled in Chennai. He has filed form No. 26AS with Income Tax Department to substantiate this version of his. According to him, no notice had been received from the respondent nos. 2 to 4 till his date of retirement.

2.5. It is the say of the petitioner that show cause notice issued in the year 2017 by the respondent No.2 – The Additional General of DGGSTI, Zonal Unit, Surat, has not been received by the petitioner and it was the duty of the respondent No.3 to verify the service of show cause notice and replied upon the documents on the petitioner but also ensure service of personal hearing to the petitioner before proceeding with adjudication against the petitioner.

2.6. It is his grievance that on 08.04.2019 the Superintendent of Central Excise, Range – V, Division-II of Vadodara-I Commissionerate – respondent no.4 herein forwarded two original order copies, one of which have been passed by the respondent no.3 - Commissioner of Central Excise, Vadodara-II. The petitioner was away from Chennai and was aet USA with his daughter from 20.03.2019 to 10.06.2019. These orders were delivered to the petitioner's servant maid Smt. Panchali, who handed over the same to the petitioner on his return from USA. He came to know that he was subjected to the penal proceedings by respondent no.3 by passing the order which is ex-parte, without even serving the show cause notice. The impugned order dated 28.02.2019, therefore, is questioned on the ground that the imposition of personal penalty to the tune of Rs. 4,50,000/- (Rupees Four Lac Fifty Thousand) under Rule 26(2)(i) and Rule 26(2)(ii) and personal penalty to the tune of Rs. 15,00,000/- (Rupees Fifteen Lacs) under Rule 26(2)(i) and Rule 26(2)(ii) of the Central Excise Rules is illegal and void ab-initio.

2.7. He has emphas