Facts of the Case
The petitioner, Ramki Cements Private Limited, had
recently established a branch office at No. 257, PathinParai, Thottakudi,
Tirunelveli, Tamil Nadu – 627151. A GST certificate had thereafter been
obtained for the said unit.
According to the petitioner, a mistake occurred in
the consignment documentation, whereby the destination was mentioned as
Chennai. The consignment was subsequently intercepted by the respondent
authority.
Following interception, the respondent issued
proceedings resulting in an order of demand of tax and penalty in Form GST
MOV-09 dated 21 October 2022.
The petitioner challenged the said order before the
Madras High Court and sought quashing of the GST MOV-09 order along with a
consequential direction for release of the goods.
The petitioner’s principal grievance was that the
notice had been issued to the driver of the consignment and had not been
received by the petitioner. Consequently, the petitioner contended that no
adequate opportunity had been granted before passing the adverse order.
Issues
Involved
The principal issues before the Court were:
- Whether issuance of the show cause notice only to the driver of the
consignment constituted adequate notice to the petitioner.
- Whether the petitioner had been granted a sufficient and meaningful
opportunity to respond before passing the order demanding tax and penalty
in Form GST MOV-09.
- Whether the impugned GST MOV-09 order dated 21 October 2022 was
sustainable when the petitioner had not received the show cause notice.
- Whether the principles of natural justice had been complied with
before passing the adverse tax and penalty order.
Petitioner’s
Arguments
The petitioner contended that the destination in
the consignment had mistakenly been mentioned as Chennai.
It was submitted that, after interception of the
consignment, the respondent issued the impugned notice to the driver. However,
the petitioner itself did not receive the notice.
On this basis, the petitioner argued that adequate
opportunity had not been granted to respond to the proposed action before the
demand of tax and penalty was confirmed.
The petitioner further disputed the respondent’s
reliance on an email notice allegedly issued on 21 October 2022. It was
specifically pointed out that the impugned order itself was passed on the very
same date, namely 21 October 2022.
Accordingly, the petitioner contended that the
respondent’s plea regarding adequate notice and opportunity could not be
accepted.
Respondent’s
Arguments
The learned Additional Government Pleader appearing
for the respondent submitted that notice had been given to the driver of the
consignment.
The respondent argued that service of notice upon
the driver was sufficient under the GST law.
It was further submitted that an email notice had
also been issued on 21 October 2022.
On these grounds, the respondent sought to justify
the proceedings leading to the impugned demand of tax and penalty.
Court Order
/ Findings
After hearing the rival submissions and examining
the material available on record, the Madras High Court formed the considered
opinion that the petitioner had not been granted adequate opportunity.
The Court specifically found that:
- The petitioner had not received the show cause notice.
- The show cause notice had been issued to the driver.
- Issuance of the show cause notice to the driver was not adequate.
- Consequently, the impugned order was liable to be set aside.
Accordingly, the Court allowed the writ petition
and quashed the order of demand of tax and penalty in Form GST MOV-09 dated 21
October 2022.
The respondent was directed to issue a fresh notice
to the petitioner.
Upon receipt of the fresh notice, the petitioner
was permitted to submit its objections.
The respondent was directed to consider such
objections and thereafter pass a speaking order within eight weeks from the
date of receipt of a copy of the High Court’s order.
No order as to costs was made, and the connected
miscellaneous petitions were closed.
Important
Clarification
The significant clarification emerging from the
decision is that, in the facts of the case, issuance of a show cause notice
merely to the driver of the intercepted consignment was held to be inadequate
where the petitioner had not received the notice.
The Court’s decision also highlights that an
adverse demand of tax and penalty cannot be sustained where adequate
opportunity has not been afforded to the affected person.
Further, the respondent’s submission regarding an
email notice dated 21 October 2022 was disputed by the petitioner on the ground
that the impugned order itself had been passed on the same date. The Court
ultimately concluded that adequate opportunity had not been granted.
The judgment does not grant unconditional final
relief against all possible proceedings. Instead, while quashing the impugned
GST MOV-09 order, the Court permitted the respondent to recommence the process
by issuing a fresh notice, receiving the petitioner’s objections, considering
them, and passing a reasoned speaking order within the stipulated period.
Key Legal
Takeaway
The decision in Ramki Cements Private Limited vs State Tax Officer reinforces the requirement of adequate opportunity before an adverse GST demand and penalty order is passed. Where the taxpayer has not received the show cause notice and notice has merely been issued to the driver of the consignment, such service was held inadequate in the circumstances of this case. The proper course is to issue fresh notice, allow objections, consider the taxpayer’s response, and pass a speaking order in accordance with law
Link to Download the Order – https://mytaxexpert.co.in/uploads/1783402520_1249compressed.pdf
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