2025(02)LCX0071
Computer Task Information Technology Services Private Limited
Versus
The Assistant Commissioner of Customs & Central Tax
WRIT PETITION Nos. 36631 and 36644 of 2024 decided on 18-02-2025
THE HON’BLE THE ACTING CHIEF JUSTICE SUJOY PAUL
AND
THE HON’BLE SMT. JUSTICE RENUKA YARA
WRIT PETITION Nos.36631 and 36644 of 2024
18-02-2025
M/s. Computer Task Information
Technology Services Private Limited.
…Petitioners
vs.
The Assistant Commissioner of
Customs & Central Tax,
Malkajgiri GST Division, Medchal GST Commissionerate,
Secunderabad and others.
… Respondents
Counsel for the Petitioners: Sri G. Narendra Chetty.
Counsel for Respondents:
Sri Dominic Fernandes, learned Senior
Standing Counsel for CBIC, for
respondent No.1.
IN THE HIGH COURT FOR THE STATE OF TELANGANA
HYDERABAD
* * * *
WRIT PETITION Nos.36631 and 36644 of 2024
(Per Hon’ble the Acting Chief Justice Sujoy Paul)
Between:
M/s. Computer Task Information
Technology Services Private Limited.
…Petitioners
vs.
The Assistant Commissioner of
Customs & Central Tax,
Malkajgiri GST Division, Medchal GST Commissionerate,
Secunderabad and others.
… Respondents
JUDGMENT PRONOUNCED ON: 18.02.2025
THE HON’BLE THE ACTING CHIEF JUSTICE SUJOY PAUL
THE HON’BLE SMT. JUSTICE RENUKA YARA
1. Whether Reporters of Local
newspapers
may be allowed to see the Judgments?
: -
2. Whether the copies of judgment
may be
Marked to Law Reporters/Journals?
: Yes
3. Whether His Lordship wishes to
see the fair copy of the Judgment?
: -
SUJOY PAUL, ACJ
RENUKA YARA, J
THE HON’BLE THE ACTING CHIEF
JUSTICE SUJOY PAUL
AND
THE HON’BLE SMT. JUSTICE RENUKA YARA
WRIT PETITION Nos.36631 and 36644 of 2024
COMMON ORDER(Oral):(Per the Hon’ble the Acting Chief Justice Sujoy Paul)
Sri G.Narendra
Chetty, learned counsel for the petitioner and Sri Dominic Fernandes, learned
Senior Standing Counsel for CBIC for respondent No.1.
2. Regard being had to the similitude of the orders impugned herein, these writ
petitions were analogously heard on admission.
3. The facts are taken from W.P.No.36631 of 2024. This writ petition filed under
Article 226 of the Constitution of India takes exception to the
Order-in-Original No.146/2023-ST, dated 29.09.2023 (wrongly typed as 29.09.2022
in the impugned order).
4. Learned counsel for the petitioner submits that although the impugned order
is appealable, since the petitioner came to know about the impugned
Order-in-Original only through bank and notices at no point of time were served
on the petitioner, the writ petition can be directly entertained.
5. By taking this Court to Section 37C of the Central Excise Act, 1944
(hereinafter referred to as, “the 1944 Act”), learned counsel for the petitioner
submits that the prescribed methods of service of decisions, orders and summons
are mentioned in this provision. This provision does not provide any method of
service of notices through e-mail. 6. Criticizing the stand taken by respondent
No.1 in the memo dated 29.01.2025, it is submitted that the communication dated
05.10.2023 from “cgst.cntrg@gov.in” was addressed to “sekhar@jayantsadashiv.com”,
which may be the e-mail ID of an employee of the company, but it is not the
e-mail ID of the company and consequently, the communication through e-mail is
totally unknown in the teeth of Section 37C of the 1944 Act.
7. Learned counsel for the petitioner placed reliance on an order of the
Customs, Excise and Service Tax Appellate Tribunal (CESTAT), Allahabad, in
M/s. Samsung India Electronics Private Limited v. Commissioner of Central
Excise, Noida (Service Tax Appeal No.50566 of 2014 (DB), Final Order
No.71611/2019, dated 18.07.2019), and urged that the order of the High Court of
Madras in OSA Shipping Pvt. Ltd. v. Commissioner of Central Excise, Chennai
, was considered in paragraph 3 of the said order.
8. Learned Senior Standing Counsel for CBIC, on the other hand, submits that the
communication dated 05.10.2023 regarding the Order-in-Original was sent to
“sekhar@jayantsadashiv.com”. From the said e-mail ID, on behalf of the company,
a mail was sent on 06.10.2021. No additional affidavit has been filed stating
that “sekhar@jayantsadashiv.com” is not an ID of an employee of the company and
therefore, it cannot be said that the company was not aware of the
Order-in-Original till it was communicated through the bank.
9. By placing reliance on Sections 142(8)(a) and 169(1)(c) of the Central Goods
and Services Tax Act, 2017 (hereinafter referred to as, “the CGST Act”), learned
Senior Standing Counsel for CBIC submits that a combined reading of both the
provisions makes it clear that the mode of service prescribed in the CGST Act
can be made applicable for recovery of arrears of tax under any previous law.
10. The parties have confined their arguments to the extent indicated above and
no other point is pressed.
11. We have heard the parties at length and perused the record.
12. Section 37C of the 1944 Act reads thus:-
“37C. Service of decisions, orders, summons, etc.—
(1) Any decision or order passed or any summons or notice issued under this Act or the rules made thereunder, shall be served,--(a) by tendering the decision, order, summons or notice, or sending it by registered post with acknowledgment 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 Boards of Revenue Act, 1963 (54 of 1963)], to the person for whom it is intended or his authorised agent, if any;
(b) if the decision, order, summons or notice cannot be served in the manner provided in clause (a), by affixing a copy thereof to some conspicuous part of the factory or warehouse or other place of business or usual place of residence of the person for whom such decision, order, summons or notice, as the case may be, is intended;
(c) if the decision, order, summons or notice cannot be served in the manner provided in clauses (a) and (b), by affixing a copy thereof on the notice-board of the officer or authority who or which passed such decision or order or issued such summons or notice.(2) Every decision or order passed or any summons or notice issued under this Act or the rules made thereunder, shall be deemed to have been served on the date on which the decision, order, summons or notice is tendered or delivered by post or courier referred to in sub-section (1) or a copy thereof is affixed in the manner provided in sub-section (1).”
13. The CGST Act came into being in the year 2017 and Section 142 thereof deals with “miscellaneous transitional provisions”. It is apposite to consider sub-section (8)(a) of Section 142 of the CGST Act, which reads thus:
“142(8)(a). where in pursuance of an assessment or adjudication proceedings instituted, whether before, on or after the appointed day, under the existing law, any amount of tax, interest, fine or penalty becomes recoverable from the person, the same shall, unless recovered under the existing law, be recovered as an arrear of tax under this Act and the amount so recovered shall not be admissible as input tax credit under this Act.”
(Emphasis supplied)
14. A minute reading of the aforesaid provision makes it clear that any assessment or adjudication proceedings instituted before, or after the appointed day can continue and the amount will be recoverable as an arrear of tax under the CGST Act. 15. Section 169(1)(c) of the CGST Act reads thus:-
“169(1)(c). by sending a communication to his e-mail address provided at the time of registration or as amended from time to time; or”
16. A conjoint reading of
Sections 142(8)(a) and 169(1)(c) of the CGST Act shows that the argument of the
learned Senior Standing Counsel for CBIC has substantial force. The provision
relating to service of notice provided under the CGST Act can be applied in view
of Section 142(8)(a) of the CGST Act in relation to any other existing law,
which includes the 1944 Act. Thus, we are unable to persuade ourselves with the
line of argument of the learned counsel for the petitioner that since Section
37C of the 1944 Act is silent about the electronic mode of service through
e-mail etc., the said mode is impermissible or not acceptable.
17. So far the order of the CESTAT, Allahabad, in M/s. Samsung India
Electronics Private Limited (supra) is concerned, paragraph 3 of the said
order only gives a reference to the order of the High Court of Madras in OSA
Shipping Pvt. Ltd. (supra). But, the said paragraph does not deal with the
aspect of the validity of service of notice through e-mail mode. Apart from
that, in the said case, the notices etc., were issued before the CGST Act came
into being. Thus, that order is, even otherwise, of no assistance.
18. Apart from the above, the petitioner was served with a notice in Form GSTDRC
13 on 08.11.2024 issued under the CGST Act. This action also supports the
contention that in view of Section 142(8)(a) of the CGST Act, adjudication
proceedings instituted under the existing law shall continue under the CGST Act.
19. The petitioner has a statutory remedy of preferring an appeal. The
petitioner can avail the said remedy. We find no reason to short circuit the
appellate remedy and entertain the petition directly.
20. The writ petitions are accordingly disposed of by reserving the
liberty to the petitioner to prefer an appeal. The petitioner may prefer the
appeal with an application for condonation of delay by showing the date of
knowledge. The appellate authority shall consider it in accordance with law. The
time consumed before this Court shall not be counted for the purpose of counting
the limitation. No order as to costs.
Miscellaneous petitions pending, if any, shall stand closed.
________________
SUJOY PAUL, ACJ
_______________
RENUKA YARA, J
18.02.2025