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CALCUTTA HIGH COURT - APPELLATE SIDE
T.S. SIVAGNANAM, HIRANMAY BHATTACHARYYA, JJ
Commissioner, Central CGST and CX Haldia Commissionerate – Appellant
Versus
Haldia Petrochemicals Limited – Respondent
M.A.T. 1356 of 2022
For the Appellants/Petitioners: Mr. Vipul Kundalia, Mr. Bhaskar Prosad Banerjee, Mr. K.K. Maiti, Mr. Tapan Bhanja
For the Respondents: Mr. J.P. Khaitan, Sr. Adv., Mr. Agnibesh Sengupta, Mr. Hiranyak Gangopadhyay
The need for proof of delivery in procedural steps under the Act for enforceability of decisions was emphasized, ensuring due process in adjudication.
Headnote:(A) Central Excise Act, 1944 - Section 37C - Service of decisions, orders, summons etc. - Mandate of service process under the Act emphasized, requiring proof of delivery for adjudication orders - Court upheld the writ court's quashing of bank attachment due to improper service of documents, while securing revenue interests by retaining funds pending appeal outcomes. (Paras 6-10)
(B) Writ Jurisdiction - The authority of the writ court to quash orders lacking compliance with service requirements established, confirming the necessity of adherence to statutory service protocols. (Paras 6-10)
Facts of the case:
The respondent filed a writ petition seeking to cancel certain letters and to direct the appellants to provide copies of crucial adjudication orders, contending improper service of the originals.
Findings of Court:
It was found that the statutory requirements of service were not fulfilled, thus justifying the quashing of the attachment order and mandating the refund of recovered amounts, with substantial funds remaining with the department.
Issues: Primary question was related to the proper service of the adjudication order and the resultant validity of the bank attachments made against the respondent.
Ratio Decidendi: The court reaffirmed that evidence of proper service is essential for enforceability of decisions and financial recoveries, ruling that unfounded attachments must be rectified to protect rights adequately.
Result: Appeal dismissed.
| Table of Content |
|---|
| 1. writ petition filed for cancellation of improper attachments. (Para 1 , 2 , 3 , 4) |
| 2. discussion on adjustments and amounts retained. (Para 5 , 6) |
| 3. service requirements and proof of delivery emphasized. (Para 7 , 8 , 9 , 10) |
| 4. dismissing the appeal and establishing no costs. (Para 11 , 12) |
JUDGMENT
(Judgment of the Court was delivered by T.S. SIVAGNANAM, J.)
1. This intra-Court appeal at the instance of the revenue is directed against the judgment and order dated 30th June, 2022 passed in W.P.A. 4249 of 2022. The appeal has been filed by the respondents in the writ petition viz., Commissionerate, Central CGST and CX, Haldia Commissionerate. The respondent no. 1 had filed a writ petition praying for a direction to cancel the letter dated 17th February, 2022 and the letter dated 18th June, 2014; for issuance of a writ of mandamus to direct the appellants to provide copy of the order in original dated 17th October, 2012 and for other allied reliefs.
2. The case of the respondent/writ petitioner before the learned writ Court was that the order of adjudication dated 17th October, 2012 was not served on the respondent and consequently, attachment of the bank account and recovery notices, which were alleged to have been issued in the year 2014 is bad and the threat meted out to the respondent vide letter dated 17th February, 2022 is also not sustainable.
3. In the said writ petition, the appellants/department had filed affidavit-in-opposition along with the copy of the order in original dated 17th October, 2012, based on which the respondents have preferred appeal before the learned tribunal after effecting the mandatory pre-deposit.
4. The learned writ Court has quashed the order of attachment of the bank accounts of the respondents and had also directed refund of the sums of money, which were recovered by such bank attachment.
5. The learned senior advocate appearing for the respondent/writ petitioner submitted that as against the amount refundable to the respondent, an adjustment has been made and that order has been put to challenge by the respondent by way of a statutory appeal before the first appellate authority.
6. It is not in dispute that the revenue has refunded the amounts, which were recovered from the respondents by way of bank attachment but the amount of approximately Rs. 4.75 crores is still lying in the hands of the department. On going through the facts of the instant case, we find that the order and direction issued by the learned writ Court is fully justified. We support such conclusion with the following reasons.
7. Section 37C of the Central Excise Act , 1944 (for short ‘the Act’) deals with service of decisions, orders, summons etc. Clause (a) of sub-section (1) of Section 37C would be relevant for the case on hand. It states that any decision or order passed or any summons or notice issued under the Act or the rules made thereunder shall be served by tendering the decision, order or summons or notice, sending it by speed post with acknowledgement due or by speed post with proof of delivery or by courier approved by the Central Board of Excise and Customs constituted under the Central Board of Revenue Act, 1963 to the person for whom it is intended or his authorised agent, if any. Clause (a) of Section 37C (1) underwent an amendment and the words “or by speed post with proof of delivery or by courier approved by the Central Board of Excise and Customs” was inserted with effect from 10th May, 2013. Thus, the statutory provision contemplates four methods of service of the decision, the first of which is tendering the decision on the assessee, secondly by sending it by registered post with acknowledgment due, thirdly by speed post with proof of delivery and fourthly by the approved courier.
8. Sub-section (2) of section 37C of the Act would also be relevant, which states that every decision under the Act or the rules shall be deemed to have been served on the date on which the decision is tendered o
