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238 Goods & Services Tax Cases - Reports [Vol. 1 tunity of being heard to the petitioner and therefore, the petitioner submitted a representation dated 1-8-2008 requesting for re-submission of the appeal papers. Accordingly, the petitioner re-submitted the appeal papers on 12-9-2008 before the first respondent with a request for permission to peruse the assessment file to ascertain the date of the order. The matter was posted for hearing on 20-11-2008 and the petitioners’ counsel appeared before the first respondent on 20-11-2008 and perused the assessment file and requested time till 25-11-2008 to submit his explanation as regard the date of service of the order of assessment. Accordingly, a written submission was also made on 25-11-2008. However, the first respondent has passed the impugned order dated 25-11-2008 stating that the appeal submitted on 17-1-2005 is after the expiration of 30 days and the appeal petition cannot be entertained. Assailing the correctness of this order, the above Writ Petition has been filed on the ground that the order of assessment was served only on 18-11-2004 at the estate office at Alancholai, which above 25 kms. away from the office of the second respondent. Therefore, it was contended that the rejection on the ground of delay of 52 days is illegal and arbitrary. 4. It is further submitted that on perusal of the assessment file, it shown that there is proof of service by some unknown persons having signed the acknowledgement on 27-10-2004. The name of the persons or their designations have not been stated and the seal of the establishment is not affixed. Therefore, the petitioner would contend that there is no valid service. 5. It is further stated that all along the written statements were submitted and acknowledgements were made and received by the Manager of the petitioner, Mr. A.L. Subramaniam, their Auditor Mr. Krishnan and the office staff with the seal of the petitioner company. It is further stated that terms of the Explanation of the rule 52(1) of the TNGST Rules, the endorsement by the person, who delivers the notice of having tendered or given it will proof for the purpose of service of the order. On this ground, the learned counsel for the petitioner would contend that the writ petition is liable to be allowed. 6. Heard Mr. S. Karunakar, learned counsel appearing for the petitioner and Mr. Pala Ramasamy, learned Special Government Pleader appearing for the respondents. 7. The issue which arise for consideration in the present writ petition is regarding the service of the order of assessment on the assessee. This issue has cropped up because the assessee has filed an appeal before the first respondent and the appeal has been rejected by the impugned order as being filed beyond the condonable period of 30 days for filing an appeal. As stated earlier, the appeal has to be presented within 30 days and further 30 days time is granted to present the appeal and the appellate authority can entertain such appeal, if he is satisfied that sufficient cause has been made out for condonation of delay. Therefore, what is required to be seen GOODS & SERVICES TAX CASES ❑ JANUARY 20 - FEBRUARY 4, 2010 ◆ 114 A B C D E F G
2010] Maruthi Estate v. Appellate Dy. CCT (Mad.) 239 A B C D E F G is whether there has been proper service of the order of assessment on the petitioner. 8. The files relating to the assessment were produced in court. It is to be noted that in the acknowledgement, there is a signature with date 27-10- 2004. The name of the person or the designation is not found and there is no seal of the petitioner company. On this ground, the learned counsel for the petitioner would contend that they have not been served with the order. However, this issue is not a disputed question of fact and this court will not go into the said aspect. The manner of service of notice under the Act is in terms of rule 52(1) of the TNGST Rules, 1959. For the purpose of this case, the Explanation of rule 52(1) reads as follows :— “Service of notices.— The service on a dealer of any notice, summons or order under the Act or these rules may be effected in any of the following ways, namely:— (a) by giving or tendering it to such dealer or his manager or agent or the legal practitioner appointed to represent him or to his authorised representative; Explanation.— Endorsement by person who delivers the notice, etc., of having tendered or given it will be proof for the purpose of this sub-rule.” 9. A perusal of the Explanation shows that there should be an endorsement by a person, who delivers the notice or order of having tendered or given it and such endorsement will be proof for the purpose of the abovesaid rule. It is to be noted in the present case that there is no such endorsement by person, who delivered the notice. One fact which has to be borne in mind is that the order of assessment was passed on 27-10-2004 and said to have been delivered in the office of the petitioner in their Alancholai estate on the same day and according to the writ petitioner, the distance between the respondent office and the estate office is more than 25 kms. 10. In view of the above finding to the effect that there is no endorsement by the person from the respondent Department, it has to be noted that there is no proper service of the order of assessment on the petitionercompany in terms of rule 52(1) of the TNGST Rules. In that view, it has to be taken that the order of assessment was served on the petitionercompany only on 18-11-2004. In such circumstances, the impugned order has to be held as bad in law and is accordingly set aside. 11. Under normal circumstances, this court would remand the matter for fresh consideration of the first respondent for the purpose of seeing whether sufficient cause has been made out for condonation of delay. However, in the instant case, it is to be noted that the appeal papers itself were pending before the first respondent for more than 3½ years after a number was assigned to the condone delay petition and after the period of 3½ years, the papers were returned on 19-6-2008 on the ground that there is delay of 52 days. The said appeal papers has been once again represented and thereafter, the impugned order has been passed. GOODS & SERVICES TAX CASES ❑ JANUARY 20 - FEBRUARY 4, 2010 ◆ 115
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