M/S. Kolkata Bricks Pvt. Ltd vs Additional Commissioner
2022 Latest Caselaw 7801 Cal

Item No.6 & 7.
            IN THE HIGH COURT OF JUDICATURE AT CALCUTTA
                        CIVIL APPELLATE JURISDICTION
                               APPELLATE SIDE
                              HEARD ON: 24.11.2022

                           DELIVERED ON:24.11.2022

                                    CORAM:

                   THE HON'BLE MR. JUSTICE T. S. SIVAGNANAM
                                       AND
          THE HON'BLE MR. JUSTICE HIRANMAY BHATTACHARYYA


                             M.A.T No.1469 of 2022
                                       with
                              I.A. No.CAN 1 of 2022

                          M/s. Kolkata Bricks Pvt. Ltd.
                                      Vs.
               Additional Commissioner, Central Tax, CGST & CX,
                      Kolkata North Commissionerate & ors.

                                       with
                             M.A.T No.1470 of 2022
                                      with
                             I.A. No.CAN 1 of 2022

                              Pravin Kumar Darolia.
                                       Vs.
               Additional Commissioner, Central Tax, CGST & CX,
                      Kolkata North Commissionerate & ors.

Appearance:-

Mr. Anil Kumar Duggar,
Mr. Rajarshi Chatterjee            ...                    for the appellants.

Mr. K. K. Maiti,
                                           2




Mr. Tapan Bhanja                      ...                         for respondents.

                                     JUDGMENT

(Judgment of the Court was delivered by T.S. SIVAGNANAM, J.)

1. Since the issues involved in these appeals are common and

germane, both the appeals are disposed of by this common

judgment and order. For the sake of convenience, we take up MAT

1469 of 2022 for discussion.

2. This intra Court appeal filed by the writ petitioner is

directed against the order dated 11th August, 2022 passed in

W.P.A. No.15451 of 2022. In the said writ petition, the

appellant had challenged the order passed by the Commissioner

(Appeals), CGST & CX (Appeal-I) (hereinafter referred to as the

"Commissioner (Appeals)" dated 28th June, 2019. The order is a

common order in two appeals; one filed by the appellant and the

other filed by the department.

3. The appeals before Commissioner (Appeals) were dismissed on

the ground of non-compliance of the mandatory pre-deposit as

there was a short payment of the said pre-deposit. The appellant

would contend that the department's appeal was time-barred and

could not have been entertained. The Commissioner (Appeals) by

a separate order dated 12th October, 2021 had allowed the said

appeal. The orders dated 12th October, 2021 and 28th June, 2019

were impugned in the writ petition.

4. It is an admitted fact that notice was not served on the

appellant before the appeal was decided. The notice sent by the

department had returned with the endorsement "left". In such

circumstances, the Act provides for different modes of

substituted service and one of such modes, which was required to

be exercised by the department was to serve notice by

affixature. This procedure having not been adhered to, the

appellant cannot be faulted for not appearing before the

Commissioner (Appeals) in his appeal or in the department's

appeal.

5. Therefore, we are of the considered view that for an

effective adjudication, the party should be heard in the matter;

either it is the assessee or the department. Failure to afford

an adequate opportunity of hearing would be in violation of the

principles of natural justice.

6. Therefore, we are inclined to set aside the orders passed

by the Commissioner (Appeals) and remand the matter for fresh

consideration after affording an opportunity of hearing to the

appellant. However, the appellant cannot pursue his appeal

unless and until he complies with the payment of mandatory pre-

deposit. As could be seen from the order dated 28 th June, 2019

passed by the Commissioner (Appeals), first the appellant,

namely, M/s. Kolkata Bricks Pvt. Ltd. is required to pre-deposit

Rs.9,30,017/- and its Director, Sri Pravin Kumar Darolia has to

deposit an identical sum. However, both the appellants have only

deposited Rs.25,000/- each. Therefore, the shortfall has to be

made good.

7. In the light of the above discussion, the appeals are

allowed. Consequently, the order passed in the writ petition is

set aside and the orders passed by the Commissioner (Appeals)

dated 28th June, 2019 and 12th October, 2021 are aside and the

matter is remanded back to the Commissioner (Appeals) for fresh

consideration. The appellants are directed to make good the

shortfall in the pre-deposit within two weeks from the date of

receipt of the server copy of this judgment and order and on

such compliance, the Commissioner (Appeals) shall hear both the

appeals together, i.e, the appeal filed by the appellant and the

appeal filed by the department and after affording an

opportunity to both the parties, fresh orders be passed on

merits and in accordance with law.

8. If the appellants fail to comply with the above direction

within the time stipulated, the benefit of this judgment and

order will not enure in favour of the appellants and the appeals

will stand automatically dismissed without reference to this

Court.

9. There will be a direction to the appellate authority to

serve notice not only on the appellant / company but also on the

Director against whom proceedings have been initiated as the

Director has also filed an independent appeal before the

Commissioner (Appeals).

10. There shall be no order as to costs.

11. Urgent photostat certified copy of this order, if applied

for, be furnished to the parties expeditiously upon compliance

of all legal formalities.

(T.S. SIVAGNANAM, J)

I agree,

(HIRANMAY BHATTACHARYYA, J.)

NAREN/PALLAB(AR.C)