Mattress Masters And Furnishings vs Assistant Commissioner, Central ...
2021 Latest Caselaw 16273 Ker

                IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                PRESENT
                  THE HONOURABLE MR. JUSTICE A.M.BADAR
     WEDNESDAY, THE 4TH DAY OF AUGUST 2021 / 13TH SRAVANA, 1943
                        WP(C) NO. 14615 OF 2021
PETITIONER/S:

           MATTRESS MASTERS AND FURNISHINGS
           6/343-D, KALATHIKUNNU, 4TH GATE, KANNUR ROAD, KOZHIKODE-
           673001, REPRESENTED BY ITS PARTNER MARTIN M. JOSEPH.

           BY ADV PREMJIT NAGENDRAN



RESPONDENT/S:

           ASSISTANT COMMISSIONER, CENTRAL TAX AND CENTRAL EXCISE,
           KOZHIKODE URBAN DIVISION, MANCHIRA, KOZHIKODE-673001.

           BY ADV P.G.JAYASHANKAR




     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
04.08.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C) NO. 14615 OF 2021                     2



                                     JUDGMENT

Heard both sides.

2. Learned counsel appearing for the petitioner drew my

attention to the show cause notice at Ext.P1 dated 22.10.2018 and

submits that the petitioner had replied to this show cause vide reply at

Ext.P2. Thereafter, the matter was posted for personal hearing. By

drawing my attention to the communication at Ext.P5 dated

24.11.2020, learned counsel appearing for the petitioner submitted that

both partners of the petitioner firm are residents of Ernakulam whereas

the firm is at Kozhikode. Because of Covid-19 pandemic, it was difficult

for partners of the petitioner to travel from Ernakulam to Kozhikode for

attending personal hearing. It is submitted that the respondents were

conducting hearing through video conference. However, the

respondents construed the request for adjournment at Ext.P5 dated

24.11.2020 as a communication by which the petitioner had

communicated that the petitioner do not wish to appear for personal

hearing. This, according to the learned counsel appearing for the

petitioner, is totally misconceive and the respondents ought to have

adjourned the matter by granting opportunity of hearing to the

petitioner. It is argued that because of non-compliance of principles of

natural justice, the impugned order needs to be set aside.

3. I have considered the submissions so advanced. With an

averment that the petitioner has failed to pay the service tax, show

cause notice (Ext.P1) was issued, to which the petitioner has tendered

reply at Ext.P2. On some occasion, the assessment proceedings were

deferred at the request of the petitioner. Ultimately, the proceedings

were fixed for personal hearing of the petitioner on 24.11.2020. By the

notice of hearing dated 11.11.2020 (Ext.P4), the petitioner was

communicated date of hearing as 24.11.2020. He was directed to

appear in person or through his authorised representative. The

petitioner replied to this notice of hearing vide communication at

Ext.P5, the relevant portion of which reads thus:-

''We are in receipt of above intimation ref:(i) dt.11.11.2020 directing us to present for the personal hearing on 24.11.2020. Please excuse us from appearing for the personal hearing considering the prevailing Corona-19 virus pandemic.

We request your goodself, to consider above facts and our earlier submissions/explanations filed with your office in this regard, and to drop penal proceeding against our firm.''

4. Bare reading of communication at Ext.P5 sent by the petitioner

to the respondent makes it clear that the petitioner expressed his

disinclination for availing opportunity of personal hearing and requested

the authority to drop the penal proceedings against the firm. Following

are the observations of the respondent while passing the impugned

order at Ext.P6:-

'' 26. Opportunity for personal hearing was given to the party.

They have failed to appear on three occasions given to them. They requested time till the Covid19 situation gets better. On their request one more opportunity for hearing was given on 24.11.2020. The assessee vide their letter dated 24.11.2020 informed that they do not wish to appear for personal hearing and the case may be decided on the basis of their earlier submissions and explanations and drop proceedings against their firm.''

5. In this view of the matter, the records show that the petitioner

was afforded opportunity of personal hearing in the matter which the

petitioner declined to avail. In this view of the matter, it cannot be said

that the impugned order suffers from viz of violation of principles of

natural justice. The impugned order is an appealable order.

In this view of the matter, the writ petition is rejected.

Sd/-

A.M.BADAR JUDGE ajt

APPENDIX OF WP(C) 14615/2021

PETITIONER EXHIBITS

Exhibit P1 A COPY OF THE SAID SHOW CAUSE NOTICE NO.41/2018-S.T. DATED 22.10.2018 ISSUED BY THE RESPONDENT.

Exhibit P2 A TRUE COPY OF THE REPLY TO THE SHOW CAUSE NOTICE FILED BY THE PETITIONER DATED 27.4.2019.

Exhibit P3 A COPY OF A REQUEST FOR ADJOURNMENT IN RESPONSE TO THE POSTING ON 8.7.2020 DATED 1.7.2020.

Exhibit P4 A TRUE COPY OF THE NOTICE POSTING THE CASE ON 24.11.2020 DATED 11.11.2020.

Exhibit P5 A COPY OF A REQUEST FOR ADJOURNMENT DATED 24.11.2020.

Exhibit P6 A TRUE COPY OF THE ORDER IN ORIGINAL NO.20/2020- S.T. DATED 18.12.2020.