Tribunal (CESTAT), Allahabad, in M/s. Samsung India Electronics private Liurited v. comrnissioner of central Excise, Noidal No

Petition under Article 226 of the Constitution of India praying that in the circumstances stated in the affidavit filed therewith, the High Court may be pleased to issue an appropriate Writ, Order or Direction, more particularly in the nature of MANDAMUS declaring that the impugned Order-in-Original No. 14612O23-Sf , dated 29-09-2023 (wrongly typed as 29-09-2022 in the impugned order), passed by the First Respondent for the Second Half Year of the Financial Year 2016-17 (i.e., for October, 2016 to March, 2017) under the Service Tax Act (Chapter V of the Finance Act, 1994) is barred by Limitation and that the extended period of Limitation under the Proviso to S. 73 (-l ) is not applicable, and even otheruuise contrary to law and unsustainable and illegal consequently set aside the lA NO: 1 OF 2024 Petition :nder S ection 151 CPC praying that in the circu nstances stated in the affidavit filed in support of the main writ petition, ther H gh (.;ourt may be pleased to grant stay cf operation of the "Notice to a third person r.rnder Section 79(1Xc)" dated 0B-11-2024, issued by the First Respcndent 1.o the Third Respondent Banl( penrling disposal of the main writ petition. lA NO: 2 OF 2024 Petition under Section 15'1 CPC praying that in the circurnstarrces stated in the affidavit filed in sut)port of the petition, the High Court may k e ple ased to grant stay of all furth,:r procr:edings, including recovery of tax, interer t, penalty and late fee,'pursuant to the irrpugned Order-in-Original No. 14612021.24, dated 29-09- 2023 (wrongly typed as 29-09-2023 in the impugned Order), passe,l by the First Respondent for the Serond Half Year of the F.Y. 2016-17 (i.r:., f 'om (.)ctober, 20 16 to March, 201 7l under the Service Tax Act (Chapter V of the Fin ance Act, 1 994), Counsel for the Petitioner: SRl. G NARENDRA CHETry Counsel for the Respondent No.1 :SRl DOMINIC FERNANDES (sen ior standing counsel for CBIC) Counsel for the Respondent No.2: SRI GADI PRAVEEN KUMAR DY'. SOLICITOR GENERAI.. OF INDIA Counsel for the Respondent NO.3: -- WRIT PETITION NO: 36644 OF 2024 Between: -:ask M/s. Conrputer lnformation Technology Services Private Limtted, 1-2- 27113F, above l\,4c Donald's, Sree Arcade, S.D. Road Ser..underabad - 500003, rep. by its Director Mr. Mathisuthanan .K. ..PETITIONER AND 1 2 J The Assistant Ccmmissioner of Customs and Central Tax, l/alka.giri GST Division, N,,ledchal GST Commissionerate, 8-2-7713 and 4.2nd Flrtor, Aditya Towers, Ilri Sai E.nclave, Old Bowenpally, Secunderabari - 1i000'1 .1 - The Union of lnd a, rep. by its Secretary (Finance), tVlinistry of Finance, North Block, New Delhi - 110001. The Bank of Ame,rica, Salarpuria Windsor, 5th Floor, B-lVinr;, No -3, Ulsoor Road, Bangalore-560042, Karnataka State, Rep- by its Brarrch lvlanager. Petition under Article 226 of the Constitution of lndia prayin,l that in the circumstances stated In the affidavit filed therewith, the Hig h C(.,urt may be .RESPONDENTS pteasedtoissueanappropriateWrit,orderorDirection,moreparticularlyinthe natureofMANDAMUSdeclaringthattheimpugnedorder-in-originalNo. 14S;2OZ3-ST, dated 29-07-2023, pissed by the First Respondent for the First Half Year of the Financial Yeat 2016-17 (i.e., for April, 2016 to september, 2016) under the service Tax Act (chapter V of the Finance Act, 1994) is barred by Limitation and that the extended period of Limitation under the Proviso to S. 73 (1 ) is not ,ppli"uJf", and even otheruyise contrary to law and unsustainable and illegal consequently set aside the same IA NO 10F 2024 Petition under section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High court may be pleased to grant stay of operation of the Notice to a third person under section z9(1)(c) dated 07 11-2024,'issued by the First Respondent to the Third Respondent Bank A NO: 2 OF 2024 Petition under section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petitlon, the High court may be pleased to grant itay of all further proceedings, including recovery of tax, interest, penalty and late fee, pursuant to ihe impugned Order-in-Original No 14512023-24, dated 29-09- zojg, passeo by the First Respondent for the First Hatf year of the F.y. 2016-17 a;, f;. April, 2016 to September, 20'16) under the Service Tax Act (Chapter V of the Finance Act, 1994) Counsel for the Petitioner: SRl. G NARENDRA CHETW counsel for the Respondent No.1:SRl DOMINIC FERNANDES (senior standing counsel for CBIC) Counsel forthe Respondent No.2: SRI GADI PRAVEEN KUMAR DY' SOLICITOR GENERAL OF INDIA Counsel for the Res-pondent NO.3: -- The Court made the following: COMMON ORDER J THE HON'BLE THE ACTING CHIEF JUSTICE SUJOY PAUL AND HE HON'BLE SMT. JUSTICE RENUKA YARA, UIRIT PETITION Nos.3663 1 and 36644 of 2o24 COMMON ORDERlOrall: per the Hon,ble the Acttng Chie,. Justrce f;ujoA pctut) Sri (i. Nare ndra Chetty, learned counsel lbr the petitioner and Sri Dominic Fernandes, learned Senior Stalding counsel for CBIC for rcspond ent No. 1 .

2. Regard being had to the similitude of the orders rmpugned herein, these wril petitions were analogously heard on admission.

3. The facts a-e taken from W.p.No.36631 of 2024. This writ petition lile d under Article 226 of the constituti.n of India takes exception to the Order-in-Original No.l46/:2023_S,ll, dated 29.O9.2023 (vvrongly typed as 29.O9.2022 in the impugne,C order).

4. Learned counser for the petitioner submits that artlrough the impugned order is appealable, since the petitionerr came to know about the impugned Order-in-Original only through bank and notices at no poir:t of time were served on the peritioner. the writ petition can be directly entertained. 4 --".,1 \

5. By taking this Court to Section 37C of the Central Excise Act, 7944 (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. lO.2O23 from '[email protected]" was addressed to "[email protected]", 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' Learned .counsel for the petitioner placed reliance on an 7 . order of the Customs, Excise and Service Tax Appellate Tribunal (CESTAT), Allahabad, in M/s. Samsung India Electronics private Liurited v. comrnissioner of central Excise, Noidal No.50566 of 2Ol4 (DB), Final Order l8.O7.2}lgl, and urged that the orde of (Service Tax APPeal No.71611/201,9, dated r , I ' 20l9 (t l) TMI 1204 5 the High Courl of Madras in OSA Shipping Rrt. Ltd. v Commissi.oner of Central E:rcise, Chennai2, 'tvas considered in paragraph 3 of t-re said order B. L,earned Senior Standing Counsel for CBIC, on the other hand, sr-Lbmits that the communication dated C5.1O.2023 ttre Order-in-Original was regarding "sekhar@)a1,ants adashiv.com". From the said e-mail ID on behalf of the cornpany a mail was sent on 06.L0.202,1. No additional affi davit h as bet:t-t filed stating that "sekhar@ja1'antsadirshiv.com" is not an ID ol an employee of the company ancl t}'Lerefore, it cannot be said -hat the company was not aware of tht', Order-in- Original till it w:Ls communicated through the bank.

9. By p,lacing reliance on Sections 1a2(8)(a) and 1691 1)(c) of the Central Goods and Services Tax Act, 2O17 (hereinafter referred to as, "the OGST Act"), learned Senior Standing Counsel for CBIC submits that a :ombined reading of both the provisions makes it clear that the rr ode of service prescribed in the CGST .A,ct can be made applicable for recovery of arrears of tax under any previous law. t:ot: 1;t:.y Er. r' r86 (Mr(1.) \ 6

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) (b) (c) 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; if the decision, order, summons or notice cannot be served in the manner provided in clause (a), by affrxing a copy thereof to some conspicuous pu..t of th. factory or warehouse or other place of tusiness or usual place of residence of the person for whom such decision, order, summons or notice, as the case may be, is intended; if the decision, order, summons or notice cannot be served in the malner provided in clauses (a) and (b), by affrxing 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 a- 7 thereof is affixed in the manner prov.ided in r;ub_section l,]pJ

13. 'lhe C(]ST Act came into being in the 5,ear 2O.tZ andSection 742 thereof deals with .miscellaneous transitional l:rrovisions,. It rs apposite to consider sub_section (8)(a) of Secricn 142 of the CGST,{ct, which reads thus: ) " t a2g)(al where in pursuance of an assa:i.s ment or a,Cjud tca tiott proceedings instituted., aikr Jh, re. on or DO tnted dau annount , ta ut, anu lntere fuin the Derson, the same sho.tl, un re'co UCrable Iess recouered under th.e existing law, be recouered, as an ariear of tdx und.er this A shall not be admissi ct q.nd the amount so recovered e as lnput tax credi t under this Act." b ,nnd.er t (Emphasis r;upplied)

14. A rlinutr reading of the aforesaid provil;ion mzrkes it clear that any assesliment or adjudication proceedin€rs or after l.he apcointed day can continue and the am()unt will be recoverat,le as zrn arrear of tax under the CGST ,Act. institrrted before,

15. Section 1t;9(l)(c) of the CGST Act reads th.us:_ *q#H ji:,itra"i, ffi - Ioq( lltc). by send.

16. A conjoint reading of Sections la2@)(a)and 169( CGST Act r;hows that the argument of the learneci senio Counsel for CBIC has substantial force. The pro.rdsion . ^*,ffi 1)(c) of the r Standing r,:lating \ \ \ i I I : I l i I 8 service of notice provided under the CGST Act can be applied in view of Section 1a2(8)(a) of the CGST Act in relation to any oth.er eisting lattt, whicn includes the 7944 Act' Thus' we are unable 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' .to

17. So far the order of the CESTAT' Allahabad' in M/s. Samsuag 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 O8'11'2024 issued under the CGST Act' This action also supports the contention that in view of Section 9 1a2(B)(a) of tht: CGST Act, adjudication proceedings instituted under the existirg law shall continue under the CGST A,ct.

19. The petitioner has a statutory remedy of prr:ferring an appeal. 'Ihe pt:titioner can avail the said remedy. IMe find no reason to short circuit the appellate remedy alrd enr_ertain the petition dr.rectly.

20. The u'rit petitions are accordingly disposed of b.,, reserving the liberQr to tlLe petitioner to prefer an appeal. The petitioner may prefer the appeal with an application for corrdonation of delay by showir:Lg the date of knowledge. The appellate auttrority shall consider it in accordalce with law. The time consurrred before this Cour: shall not be counted for the purpose of corrnting the limitation. No order as to costs. Miscellale,tus petitions pending, if any, shzrll stan<.[ closed. I SD/. A. SRINIVASA REDDY ASSISTANT REGISTRAR _l //TRUE COPY// SECTION OFFICER one fair copv to THE HON'BLE THE AcflNG cHrEF JUSTTCE suJoy PAUL (For His Lordship,s Kind perusal) one fair copy to THE HoN,BLE srur. i}&rce RENUKA vARA (For His Lordship,s Kind perusal) To, 'l . The Ass'istant commissioner of customs and centrar l-ax, Markaiqiri GST Division, rr,4edct- al GST Commissi onera,te, aJzlzl t3 ;il;,' iffi"iiil; X;i", Towers, Sri Sai Enctave, old Bowenpattv,' 5""u,ia"rro,ri '.;oti)i;"' ""''r'

2. The_S^ecretary (:inance), Ministry of Finance, North Block, New Delhi -

110001. i

3. The Branch [Vlanager, Bank of America, Salarpuria Windsor, 5th Floor,.B- Wing, No.-3, Ulsoor Road, Bangalore-560042, Karnataka State.

4. 11 L.R. Copies. 5. The Under Secretary, Union of lndia, Ministry of Law, Justice and Company Affairs, New Delhi.

6. The Secretary, Telangana Advocates Association Library, High Court for the State of Telangana at Hyderabad.

7. One CC to SRI G NARENDRA CHETTY Advocate [OPUC] 8. One CC to SRl. DOMINIC FERNANDES (senior standing counsel for CBIC) toPUCl

9. One CC to Sri Gadi Praveen Kumar, Deputy Solicitor General of lpdia [OPUC] 10.Two CD Copies KKS GJP -';:r i --- HIGH COURT DATED:1810212025 \ \ COMMON ORDER WP.Nos,36631 and 36644 of 2024 S rArc'

19. q i 2o l.'i z"?5 t+ o ;. .-! (', P z o ,t DISPOSING OF THE WRIT PETITION WITHOUT COSTS 42 1.r4 2.f/+74{