Kerala High Court
Plant Lipids (P) Ltd vs Commissioner (Appeals) on 10 June, 2021
W.P.(C)No.11739/2021 1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE GOPINATH P.
THURSDAY, THE 10TH DAY OF JUNE 2021 / 20TH JYAISHTA, 1943
WP(C) NO. 11739 OF 2021
PETITIONER:
PLANT LIPIDS (P) LTD
KADAYIRUPPU, KOLENCHERY, KOCHI-682311, REPRESENTED BY
ITS CHAIRMAN, SRI. C.J.GEORGE.
BY ADVS.
ENOCH DAVID SIMON JOEL
S.SREEDEV
RONY JOSE
CIMIL CHERIAN KOTTALIL
SUZANNE KURIAN
RESPONDENTS:
1 COMMISSIONER (APPEALS)
CENTRAL BOARD OF INDIRECT TAXES AND CUSTOMS, CENTRAL
REVENUE BUILDING, I.S.PRESS ROAD, COCHIN-682018.
2 ASSISTANT COMMISSIONER,
CENTRAL TAX & CENTRAL EXCISE, PERUMBAVOOR DIVISION, G-
ARCADE, PERUMBAVOOR -683542.
BY ADVS.
SRI.THOMAS MATHEW NELLIMOOTTIL, SC, CENTRAL BOARD OF
EXCISE & CUSTOMS
ENOCH DAVID SIMON JOEL
OTHER PRESENT:
SRI. SREELAL N. WARRIER SC
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
10.06.2021, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
W.P.(C)No.11739/2021 2
JUDGMENT
The petitioner is a Company incorporated under the Companies Act,
1956. It is engaged in the business of manufacture and export of spice
oleoresins and spice extracts. For a period prior to the introduction of the
Goods and Service Tax regime, the petitioner was required to pay service
tax under the Reverse Charge Mechanism in respect of ocean freight paid
for the import of materials. However, due to an oversight, the petitioner
could not comply with the requirement to pay service tax on a Reverse
Charge basis which admittedly was a requirement that came into force on
13.4.2017. Immediately, on noticing this, the petitioner voluntarily paid a
sum of Rs.54,03,171/- as service tax in respect of ocean freight on a
Reverse Charge basis on 29.6.2018 and 11.8.2018.
2. On the introduction of the GST Regime, the petitioner was
required to claim any credit of input tax existing under any previous tax
regime, by submitting a declaration in Form GST-TRAN-1. The petitioner
had filed the above Form on 20.9.2017. Quite obviously, the Service Tax
on ocean freight having been paid only on 29.6.2018 and 11.8.2018, was
not claimed in the GST-TRAN-1 Form. The petitioner, therefore, claimed a
refund of the amount paid as service tax obviously on the premise that it
had not been able to avail input tax credit on the said amount. The claim
was rejected through Ext.P1 order dated 17.5.2019. The petitioner
challenged Ext.P1 order by filing an appeal before the 1 st respondent. The
1st respondent has now issued Ext.P3 order rejecting the appeal. Ext.P3 is
impugned in this writ petition principally on the ground that it has been
issued in violation of principles of natural justice.
3. I have heard Ms. Suzanne Kurian, the learned counsel
appearing for the petitioner and Sri. Thomas Mathew Nellimoottil, the
learned Senior Standing Counsel appearing for the respondents.
4. The learned counsel for the petitioner submits that, though it
is stated in Ext.P3 that an opportunity of personal hearing was extended to
the petitioner on 4.2.2021, no such intimation was given to the petitioner.
She refers to Ext.P4 and states that, admittedly, the notice stated to have
been given is one for Video Conferencing and intimation regarding the
same is stated to have been sent by email. She also submits that as per
instructions issued by the Central Board of Indirect Taxes and Customs,
consent for Video Conferencing has to be obtained in advance and further
that in practice, a minimum of three adjournments is granted in order to
enable the party concerned to attend the hearing. She, therefore, submits
that Ext.P3 order is clearly one issued in violation of principles of natural
justice.
5. The learned Standing Counsel for the respondents submits
that a person, who fails to avail of an opportunity, cannot be heard to
complain of a violation of principles of natural justice. He would also
submit that all the contentions taken by the petitioner have been duly
considered in Ext.P3 order. He states that he can file a detailed counter
affidavit in the matter along with necessary records to show that an
opportunity for a hearing had been extended to the petitioner.
6. Upon hearing the learned counsel, as above, I am of the
opinion that this writ petition can be disposed of without going into the
merits of the matter. I do not propose to enter into the merits of the
controversy or to render any finding as to whether a notice for personal
hearing was actually issued to the petitioner or not. The learned Standing
Counsel is justified in asserting that a person who failed to avail an
opportunity cannot be heard to complain of a violation of the principles of
Natural Justice. However, one cannot lose sight of the fact that this is not a
case where there has been a consistent default on the part of the petitioner
in appearing for a personal hearing. Further, the notice stated to have been
given through e-mail is not given to any particular officer but to
'[email protected]', according to Ext.P.4. It is not possible to ascertain
whether the notice sent to this e-mail was brought to the notice of the
officer concerned. In such a situation, one cannot forget the classic
statement of the law by Megarry.J in John v. Rees (as referred to in S.L.
Kapoor v. Jagmohan, (1980) 4 SCC 379 at page 392)
"It may be that there are some who would decry the importance
which the courts attach to the observance of the rules of natural
justice. 'When something is obvious', they may say, 'why force
everybody to go through the tiresome waste of time involved in
framing charges and giving an opportunity to be heard? The result
is obvious from the start'. Those who take this view do not, I think,
do themselves justice. As everybody who has anything to do with
the law well knows, the path of the law is strewn with examples of
open and shut cases which, somehow, were not; of unanswerable
charges which, in the event, were completely answered; of
inexplicable conduct which was fully explained; of fixed and
unalterable determinations that, by discussion, suffered a change.
Nor are those with any knowledge of human nature who pause to
think for a moment likely to underestimate the feelings of
resentment of those who find that a decision against them has been
made without their being afforded any opportunity to influence the
course of events."
I am therefore clear in my mind that the appeal ought to have been
adjudicated with proper notice to the petitioner.
7. In the light of the above, I am of the opinion that a further
opportunity should have been granted to the petitioner for a personal
hearing. In that view of the matter, this writ petition is allowed. Ext.P3
order will stand set aside and consequently, Ext.P2 appeal will stand
restored to file. Ext.P2 appeal will be adjudicated afresh, with notice to the
petitioner. Such notice may be served by e-mail on an e-mail address to be
specified by the petitioner, in writing, to the office of the 1 st respondent.
This shall be done within a period of one week from the date of receipt of a
copy of this judgment. The 1 st respondent shall, thereafter, endeavour to
dispose of Ext.P2 appeal within the shortest possible time and in any
event, within a period of six months from the date of receipt of a certified
copy of this judgment.
sd/-
GOPINATH P.
JUDGE
acd
APPENDIX OF WP(C) 11739/2021
PETITIONER ANNEXURE
Exhibit P1 A TRUE COPY OF THE ORDER DATED 17.5.2019
AND NUMBERED AS C NO.V/18/11/2019 ST
REFUND ISSUED BY THE 2ND RESPONDENT.
Exhibit P2 A TRUE COPY OF THE APPEAL MEMORANDUM
DATED 16.8.2019 FILED BY THE PETITIONER
AGAINST EXT. P1 BEFORE THE 1ST
RESPONDENT.
Exhibit P2(A) A TRUE COPY OF THE RECEIPT DATED
29.1.2020 ISSUED BY THE 1ST RESPONDENT.
Exhibit P3 A TRUE COPY OF THE ORDER DATED 25.2.2021
IN APPEAL NUMBER A.NO.138/ST/CHN/2019-R
PASSED BY THE 1ST RESPONDENT.
Exhibit P4 A TRUE COPY OF THE LETTER DATED
17.3.2021 ISSUED BY THE 1ST RESPONDENT.
