Form GST APL – 01

      Appeal to Appellate Authority

1	GSTIN/TEMPORARY ID/UIN
2	Legal name of the appellant
3	TRADE NAME, IF ANY
4	Address
5	Order No & Date
6	Designation of the officer passing the order appealed against
7	Date of communication of the order appealed against
8	Name of the authorized representative
9	Details of the case under dispute
9(1)	Brief issue of the case under dispute
9(2)	Description and classification of goods/ services in dispute
9(3)	Period of dispute
9(4)	Amount under dispute:
10	Whether the appellant wishes to be heard in person
11	Statement of facts	As per Annexure A
12	Grounds of appeal	As per Annexure B
13	Prayer	As per grounds of appeal

14. Amount of demand created, admitted and disputed –

Particulars of demand /refund	Particulars		Central Tax	State Tax	Integrated Tax	Cess	Total Amount	Overall total Amount
	Amount of demand created (A)	a) Tax/ Cess	0	0		0
		b) Interest	0	0		0
		c) Penalty	0	0		0
		d) Fees	0	0	0	0
		e) Other charges	0	0	0	0	0
	Amount of demand admitted (B)	a) Tax/ Cess	0	0	0	0	0
		b) Interest	0	0	0	0	0
		c) Penalty	0	0	0	0	0
		d) Fees	0	0	0	0	0
		e) Other charges	0	0	0	0	0
	Amount of demand disputed (C)	a) Tax/ Cess	0	0
		b) Interest	0	0
		c) Penalty	0	0
		d) Fees	0	0	0	0	0
		e) Other charges	0	0	0	0	0

15. Details of payment of admitted amount and pre-deposit: – NIL

(a) Details of payment required

Particulars		Central Tax	State/UT Tax	Integrated Tax	Cess	Total Amount
a)     Admitted Amount	Tax/Cess
	Interest
	Penalty
	Fees
	Other Charge
b)     Pre Deposit (10% of disputed Amount)	Tax/Cess

(b) Details of payment of admitted amount and pre-deposit (pre-deposit 10% of the disputed tax and cess):

(b.1) Detail of payment of admitted amount – NIL

S. No.	Description	Tax Payable	Paid through cash/credit ledger	Debit Entry No	Amount of tax paid
					Central Tax	State/UT Tax	Integrated Tax	Cess
1	2	3	4	5	6	7	8	9
1	Integrated Tax		Cash Ledger
			Credit Ledger
2	Central Tax		Cash Ledger
			Credit Ledger
3	State/UT Tax		Cash Ledger
			Credit Ledger
4	Cess		Cash Ledger
			Credit Ledger

(b.2) Detail of payment of pre deposit (pre-deposited 100% of the disputed tax and cess) –

S. No.	Description	Tax Payable	Paid through cash/credit ledger	Debit Entry No	Amount of tax paid
					Central Tax	State/UT Tax	Integrated Tax	Cess
1	2	3	4	5	6	7	8	9
1	Integrated Tax		Cash Ledger		0	0		0
			Credit Ledger
2	Central Tax		Cash Ledger
			Credit Ledger
3	State/UT Tax		Cash Ledger
			Credit Ledger
4	Cess		Cash Ledger
			Credit Ledger

(c) Interest, penalty, late fee and any other amount payable and paid;

S. No.	Description	Amount Payable				Debit Entry No	Amount Paid
		Integrated Tax	Central Tax	State Tax	Cess		Integrated Tax	Central Tax	State Tax	Cess
1	2	3	4	5	6	7	8	9	10	11
1	Interest	0	0	0	0	NA	0	0	0	0
2	Penalty		0	0	0			0	0	0
3	Late fees	0	0	0	0	NA	0	0	0	0
4	Others	0	0	0	0	NA	0	0	0	0

16	Whether appeal is being filed after the prescribed period	YES
17	If “Yes” in item 16
17(a)	Period of delay
17(b)	Reasons for delay	1.

Verification

I, Prop. of M/s, hereby solemnly affirm and declare that the information given here in above is true and correct to the best of my knowledge and belief and nothing has been concealed there from.

Thanks & Regards

For Company Name

Authorized person

Designation

Annexure A

1.   Statement of Facts

• M/s (hereinafter referred to as the Appellant) is filling present appeal against the impugned order in original in form DRC 07 issued vide Order No. on dated Financial Year 2020-21, order is enclosed as Annexure 1.

• The appellant has been served a Show Cause Notice (hereinafter referred to as SCN) on Dated Reference No. U/s 74 of Central Goods and Service Tax Act 2017 (hereinafter referred to as Act) for the allegation “ABC” and demand of Rs. /- as Tax, Rs. ______/- as Interest and Rs. – Penalty under the provision of Section 74 of Act.

• We have made detailed reply of SCN on dated ________in form DRC 02 vide uploading the same on the GSTN Portal, by mode of Email on dated _______ , by mode of Speed Post on Dated ______ , with the detailed reply of the SCN, we have also demanded for the Personal Hearing.

• After that, we have received demand order in form DRC 07 on dated ______ vide Order No. on dated Financial Year 2020-21with demand of as Tax, Rs.______ as Interest and Rs. _____Penalty under the provision of Section 74 of Act.

• Order was passed by the revenue on ex party basis, mentioned that no reply was submitted by appellant whereas same is already submitted (Enclosed as Annexure 2). 

Annexure –B

2.   Grounds of Appeal

• Order passed in DRC 07 by the PO in violation of Principal of Natural Justice such as No Opportunity of Personal hearing was given to the Appellant.
• Order was passed Ex-partie without even considered our submission with claims that no reply was made by us, same is against the Act.
• Order was passed without supply of relied upon documents to appellant on which SCN was issued, same is against the principal of Natural Justice.
• Learned PO has imposed penalty U/s 74 100% of the tax amount whereas maximum penalty in Section 74(11) Of Act, hence penalty imposed beyond the Act itself, improper and imaginary nature.
• Learned PO has adjudicate the SCN U/s 74 of Act whereas there is no allegation and their confirmation in DRC 07 for the evasion of tax with wilful misstament, suppression of fact and Fraud, which is pre condition before invoking, Section 74, this adjudication has to be done in Section 73 only, not Section 74.

3.   APPELLANT’S GROUNDS ON MERITS

3.1. No Opportunity of Personal hearing was given to the Appellant

3.1.1.  Provision of law

Opportunity of being heard is the basic right of the RTP as per Section 75(4) of Act, without this, the order passed by the Lrd. PO liable to set aside in principal of natural justice, extract of Section 75(4) is reproduced below for reference.

Section 75(4) –  An opportunity of hearing shall be granted where a request is received in writing from the person chargeable with tax or penalty, or where any adverse decision is contemplated against such person.

3.1.2.  CASE LAW

1. “We would like to place Reliance is placed on the decision of HIGH COURT OF MADRAS in case of VECTRA COMPUTER SOLUTIONS WP (MD)No.9531 of 2020 [2021 TAXO.online 461] and WMP (MD)No.8587 of 2020 Dated: March 25, 2021, Hon’ble Court set aside the order passed by the PO because the Oppournity of hearing is not Given to the RTP, extract of order is reproduced below

PARA 5. Though very many grounds have been urged on either side, the order impugned in this writ petition has to be quashed on the simple ground that no personal hearing was granted. The learned counsel appearing for the petitioner drew my attention to Section 75(4) of the CENTRAL GOODS AND SERVICES TAX ACT, 2017 which states that an opportunity of hearing shall be granted where a request is received in writing from the person chargeable with tax or penalty, or where any adverse decision is contemplated against such person.

PARA 6. I carefully went through the contents of the notice dated 29.10.2019 issued by the third respondent. Nowhere in the said notice, Personal hearing has been afforded to the petitioner herein. In the impugned order also, it is nowhere mentioned that such opportunity was afforded to the petitioner.

PARA 7. On this sole ground, the order impugned in this writ petition is quashed. The matter is remitted to the file of the third respondent to pass orders afresh in accordance with law. This writ petition stands allowed. No costs. Consequently, connected miscellaneous petition is closed

1. “We would like to place Reliance is placed on the decision of ANDHRA PRADESH HIGH COURT order in case of KORRAPATHI JANARDHANA NAIDU WRIT PETITION No.9011 OF 2021 [2021 Taxo.online 565]– April 28, 2021, Hon’ble order set aside and remind back the order passing by the PO without opportunity of being to the RTP, extract of order is below.

PARA 6. According to the petitioner, he is a registered civil contractor, undertaking government works in Water Resources Department of the Government of Andhra Pradesh. A perusal of the impugned order of assessment shows that preceded by a notice dated 23.01.2020 and submission of reply dated 23.7.2020 by the assessee, 2nd respondent-Assessing Authority passed the impugned order of assessment.

PARA 7. In order to adjudicate the issue in the present Writ Petition, it may be appropriate to refer to Section 75 of the CGST Act, 2017, which deals with the general provisions relating to determination of tax. According to sub-section (4) of Section 75 of the Act, an opportunity of hearing should be granted where a request is received in writing from the person chargeable with tax or penalty, or where any adverse decision is contemplated against such person. In the instant case, though the petitioner herein submitted his reply to the notice issued by 2nd respondent prior to passing the impugned order, the Assessing Authority, while referring to the objections raised therein, simply stated that they were not considered, and eventually, determined the liability as proposed in the show cause notice. In the considered opinion of this Court, 2nd respondent herein, before doing so, ought to have afforded an opportunity of hearing to the assessee, as mandated under sub-section (4) of Section 75 of the CGST Act, 2017. In the case on hand, 2nd respondent adhered to the said provision of law in breach. The said action is also a patent violation of principles of natural justice, as such, the contention of the learned Government Pleader as regards the availability of alternative remedy of appeal under Section 107 of the CGST Act, 2017, deserves to be rejected and is, accordingly, rejected. On the sole ground of failure to adhere to the provisions of sub-section (4) of Section 75 of the CGST Act, 2017, this Court is inclined to set aside the impugned order and to remand the matter to the Assessing Authority for passing appropriate orders afresh.

PARA 8. For the aforesaid reasons, the Writ Petition is allowed, setting aside the order of assessment passed by the Assistant Commissioner (State Tax), Circle-II, Nellore-2nd respondent herein, bearing Order No.ZH3709200D88169, dated 21.09.2020, and remanding the matter to 2nd respondent for consideration of the issue afresh after affording opportunity of hearing to the petitioner. There shall be no order as to costs of the Writ Petition. Miscellaneous Petitions pending, if any, in the Writ Petition shall stand closed.

3.1.3.  CONCLUSION

In our case, No opportunity of Personal hearing was given to us, so order passed by the Lord PO is violation of the principal of natural justice as well as mandate provision of the Act and Hon’ble Court order, so order passed by the Lord PO liable to quash and set aside.

3.2. Order was passed Ex-partie without even considered our submission with claims that no reply was made by us

It is evident from the documents enclosed that we have made reply of SCN on dated whereas DRC 07 order is passed as Ex Partite and with observation that no reply submitted by the Appellant, 

3.2.1.  Provision of law

Imposed penalty U/s 74 100% of the tax amount whereas maximum penalty in Section 74(11) Of Act, hence penalty imposed beyond the Act itself, improper and imaginary nature.

It is clearly mentioned in the Section 74(11) that maximum penalty in case of demand U/s 74 will be 50% of the tax, whereas adjudication order has passed with Penalty 100% of Tax which is _______ which is beyond the Act, hence illegal and not accordance with Act, extract of Section 74(11) is reproduced below for reference.

Section 74(11) –  Where any person served with an order issued under sub-section (9) pays the tax along with interest payable thereon under section 50 and a penalty equivalent to fifty per cent of such tax within thirty days of communication of the order, all proceedings in respect of the said notice shall be deemed to be concluded.

We would like to draw your attention in the Section 75(13) of the Act, it is clearly mentioned in the Section 75(13) that where penalty is imposed U/s 74 of Act, then no other penalty can be imposed on the RTP in any other provision of the Act, hence penalty U/s 122(7) (which infect not exist in the Act) 100% of tax is not sustainable in the statue itself.

Section 75(13) – Where any penalty is imposed under section 73 or section 74, no penalty for the same act or omission shall be imposed on the same person under any other provision of this Act.

When it is clear stated in the provision of the law that no other penalty Leviable to the RTP, then adjudication order with 100% proposed penalty is illegal and beyond the act, further there is nothing mentioned in the adjudication order under which section 100% penalty is imposed by Lord PO.

Learned PO has adjudicated the SCN U/s 74 of Act whereas there is no allegation and their confirmation in DRC 07 for the evasion of tax with willful mistaken, suppression of fact and Fraud, which is pre condition before invoking, 

It is submitted that Lord. PO has issued Notice and adjudication order in Section 74 of Act, which used in the case of willful mis-statement, suppression of Fact and fraud case, whereas there is no allegation even in single word of SCN that we have made these, how these all applicable in our case, which one condition is applicable in our case out of all three condition, why Section 74 instead of Section 73 applicable in our case, nothing is mentioned in the SCN issued by your office, relevant extract of the Section 74 is reproduced below.

Determination of tax not paid or short paid or erroneously refunded or input tax credit wrongly availed or utilized by reason of fraud or any willful misstatement or suppression of facts.

Section 74(1) Where it appears to the proper officer that any tax has not been paid or short paid or erroneously refunded or where input tax credit has been wrongly availed or utilized by reason of fraud, or any willful-misstatement or suppression of facts to evade tax, he shall serve notice on the person chargeable with tax which has not been so paid or which has been so short paid or to whom the refund has erroneously been made, or who has wrongly availed or utilized input tax credit, requiring him to show cause as to why he should not pay the amount specified in the notice along with interest payable thereon under section 50 and a penalty equivalent to the tax specified in the notice.

Explanation 2: For the purposes of this Act, the expression “suppression” shall mean non- declaration of facts or information which a taxable person is required to declare in the return, statement, report or any other document furnished under this Act or the rules made there under, or failure to furnish any information.

For the purpose of clarity, we hereby below has mentioned the meaning of all these three word such as Suppression of Fact, willful misstatement and Fraud as per the Act or Previous regime whereas Hon’ble Supreme Court as well as Hon’ble High Court extensive discussed all three word and held on various occasion for the precondition for the invoking the extended period of limitation with the interpretation of these words, Section 74 of Act is pari Materia of Section 11A of Central Excise Act 1944 and Section 28 of Custom Act 1962.

3.2.2.  Suppression of Fact: –

1. “We would like to place Reliance is placed on the decision of Supreme Court in ‘Anand Nishikawa Company Ltd. vs. Commissioner of Central Excise’ SUPREME COURT [2005 Taxo.online 1] held that the term ‘suppression’ must be construed strictly. It does not mean any omission and the act must be deliberate and willful to evade payment of duty. In taxation, it (“suppression of facts”) can have only one meaning that the correct information was not disclosed deliberately to escape payment of duty. Where facts are known to both the parties the omission by one to do what he might have done and not that he must have done, does not render it suppression. When facts were known to both the parties, the omission by one to do what he might have done not that he must have done would not render it suppression. It is settled law that mere failure to declare does not amount to willful suppression. There must be some positive act from the side of the assessee to find willful suppression.

2. “We would also like to rely on the decision of ‘Pushpam Pharmaceuticals Company v. Collector of Central Excise, Bombay’ – 2016 Taxo.online 46 – SUPREME COURT, the Supreme Court examined whether the Department was justified in initiating proceedings for short levy after the expiry of the normal period of six months by invoking the proviso to section 11A of the Excise Act. The proviso to section 11A of the Act carved out an exception to the provisions that permitted the Department to reopen proceedings if the levy was short within six months of the relevant date and permitted the Authority to exercise this power within five years from the relevant date under the circumstances mentioned in the proviso, one of it was suppression of facts. It is in this context that Supreme Court observed that since ‘suppression of fact’ had been used in the company of strong words such as fraud, collusion, or willful default, suppression of facts must be deliberate and with an intent to escape payment of duty. The Supreme Court held that a perusal of the proviso indicates that it has been used in company of such strong words as fraud, collusion or willful default. In fact it is the mildest expression used in the proviso. Yet the surroundings in which it has been used it has to be construed strictly. It does not mean any omission. The act must be deliberate. In taxation, it can have only one meaning that the correct information was not disclosed deliberately to escape from payment of duty. Where facts are known to both the parties the omission by one to do what he might have done and not that he must have done, does not render it suppression

3. “We would also like to rely on the decision of Hon’ble Calcutta High Court in the case of Naresh Kumar & Co. Pvt. Limited vs Union of India & Ors on 25 April, 2014 cited in 2016 Taxo.online 47, whereas Hon’ble Court set aside the extended period of limitation exercised by the revenue and observed that

PARA 27 Relying on the aforesaid observations of this Court in the case of Pushpam Pharmaceuticals Co. v. CCE we find that “suppression of facts” can have only one meaning that the correct information was not disclosed deliberately to evade payment of duty. When facts were known to both the parties, the omission by one to do what he might have done and not that he must have done, would not render it suppression. It is settled law that mere failure to declare does not amount to willful suppression. There must be some positive act from the side of the assessee to find willful suppression. Therefore, in view of our findings made hereinabove that there was no deliberate intention on the part of the appellant not to disclose the correct information or to evade payment of duty, it was not open to the Central Excise Officer to proceed to recover duties in the manner indicated in the proviso to Section 11-A of the Act. We are, therefore, of the firm opinion that where facts were known to both the parties, as in the instant case, it was not open to CEGAT to come to a conclusion that the appellant was guilty of “suppression of facts”. In Densons Pultretaknik v. CCE this Court held that mere classification under a different sub-heading by the manufacturer cannot be said to be wilful misstatement or “suppression of facts”. This view was also reiterated by this Court in CCE v. L.M.P. Precision Engg. Co. Ltd.” The aforesaid proposition is further reiterated in a recent judgment rendered by the Supreme Court in case of Commissioner of Central Excise -vs- Bajaj Auto Ltd; reported in 2016 Taxo.online 112 in these words:

It is very clear from the above Hon’ble Supreme Court order that Section 74 condition of suppression of fact cannot be invoked without suppression by the RTP, in our case, we have duly taken ITC based on the Section 16 read with Rule 36 as per the condition of the Act, we have not suppressed anything about the supply in the GSTR 2A or GSTR 3B as the case may be, so there is no suppression of fact in our case and this provision is not applicable in our case.

3.3. Wilful Misstatement: –

1. Reliance is placed on the decision of Hon’ble Supreme Court in the case of Cosmic Dye Chemical vs Collector Of Central Excise 1994 cited in 2016 Taxo.online 48, whereas Hon’ble court interpreted the meaning of wilful misstatement and held that if dealer is doing anything on willingly then there is wilful misstament, otherwise extended period of limitation cannot be invoked, in our case, we haven ITC wrongly on the belief that purchase is made in the month of march whereas same is done in the April first week, it is a human error only, not any wilful mistaken. Relevant extract of the decision is reproduced below for your reference.

PARA 8 Now so far as fraud and collusion are concerned, it is evident that the requisite intent, i.e., intent to evade duty is built into these very words. So far as misstatement or suppression of facts are concerned, they are clearly qualified by the word “wilful” preceding the words “misstatement or suppression of facts” which means with intent to evade duty. The next set of words “contravention of any of the provisions of this Act or rules” are again qualified by the immediately following words “with intent to evade payment of duty”. It is, therefore, not correct to say that there can be a suppression or misstatement of fact, which is not wilful and yet constitute a permissible ground for the purpose of the proviso to Section 11-A. Misstatement or suppression of fact must be wilful

1. In Sarabhai M. Chemicals Vs. Commissioner of Central Excise, Vadodara2, a three- judge bench of Hon’ble Supreme Court, while referring to the observations extracted above, echoed the following views:

PARA 23 Now coming to the question of limitation, at the outset, we wish to clarify that there are two concepts which are required to be kept in mind for the purposes of deciding this case. Reopening of approvals/assessments is different from raising of demand in relation to the extended period of limitation. Under section 11A(1) of the Central Excise Act, 1944, a proper officer can reopen the approvals/assessments in cases of escapement of duty on account of non-levy, non-payments, short-levy, short- payment or erroneous refund, subject to it being done within one year from the relevant date. On the other hand, the demand for duty in relation to extended period is mentioned in the proviso to section 11A(1). Under that proviso, in cases where excise duty has not been levied or paid or has been short-levied or short-paid or erroneously refunded on account of fraud, collusion or wilful mis-statement or suppression of facts, or in contravention of any provision of the Act or Rules with the intent to evade payment of duty, demand can be made within five years from the relevant date. In the present case, we are concerned with the proviso to section 11A(1).

PARA 24 In the case of Cosmic Dye Chemical v. Collector of Central Excise, Bombay 2016 Taxo.online 48, this Court held that intention to evade duty must be proved for invoking the proviso to section 11A(1) for extended period of limitation. It has been further held that intent to evade duty is built into the expression “fraud and collusion” but mis-statementand suppression is qualified by the preceding word “wilful”. Therefore, it is not correct to say that there can be suppression or misstatement of fact, which is not wilful and yet constitutes a permissible ground for invoking the proviso to section 11A.

PARA 25 In case of b this Court has held that the extended period of five years under the proviso to section 11A(1) is not applicable just for any omission on the part of the assessee, unless it is a deliberate attempt to escape from payment of duty. Where facts are known to both the parties, the omission by one to do what he might have done and not that he must have done does not constitute suppression of fact.”

It is further submitted that burden for the prove that all three condition lies on the revenue, which is not fulfilled in the SCN, it is settled position of the law that revenue need to prove that RTP made wilful misstatement, suppression of fact, fraud. Reliance is placed on the decision of Hon’ble Supreme Court.

Hence, on account of the fact that the burden of proof of proving mala fide conduct under the proviso to Section 28 of the Act lies with the Revenue; that in furtherance of the same, no specific averments find a mention in the show cause notice which is a mandatory requirement for commencement of action under the said proviso; and that nothing on record displays a willful default on the part of the appellant, we hold that the extended period of limitation under the said provision could not be invoked against the appellant.

3.4. Reliance Upon documents not submitted to us by Lord PO

It is alleged in the SCN that our supplier was not found at the time of visit, so revenue has taken view that our supplier is the bogus supplier and our purchase from the such supplier is liable to the reversed as per the content of the SCN.

It is submitted that the visit report of revenue and other relied upon documents on the basis of tis SCN is not supplied to us with SCN such as communication report from your department to your office that same firm was not in the existence, since SCN is issued solely on the basis of supplier not found report received by yourself, so supply of relied upon documents is required to us for the enable us for the proper reply of this SCN.

1. Reliance is placed on the decision of Hon’ble Madras High Court in the case of SRI MUNIAPPA STEELS WP No. 10489 of 2019 cited in 2021 Taxo.online 1442 Dated: April 27, 2021 (Pertain to the GST Regime) Hon’ble court order for the supply of relied documents for the natural justice with petitioner since allegation was based on the third-party statement/documents by the Revenue, extract of order is reproduced below for your reference.

The petitioner has replied to the Officer on 23.12.2020 specifically requiring a copy of the statement relied upon by the respondent. In the show cause notice, the Assessing Authority states that the supplier had admitted in his statement recorded by the Central GST Authorities,stating that they had neither received any inward nor engaged in outward supply. The officer thus proposes to arrive at a conclusion that the transaction was not genuine and the petitioner was engaging in bill trading. In response, the petitioner has specifically sought the statement recorded by the third-party dealer reserving his right to cross examine the dealer as well as to file objections to the same. The impugned order has come to be passed without hearing the petitioner and admittedly, without supplying the statement relied upon by the Officer.

PARA 4. The conclusion in the assessment order, in fact, mentions the statement recorded by the third-party dealer and in the light of the fact that this statement forms the basis of assessment, the petitioner ought to have been granted opportunity to peruse the statement and put forth its objections to the same. This has not been done, which, in my view, constitutes principles of violation of natural justice.

PARA 5. The impugned order is thus set aside. Let the statement and other particulars relied upon by the Officer in the impugned order of assessment be supplied to the petitioner within a period of three (3) weeks from today. Thereafter, the petitioner shall be afforded an opportunity of hearing to put forth its submission and also file objections. Upon consideration thereof, a speaking order shall be passed by the Officer within a period of six (6) weeks from date of first hearing.

PARA 6. This Writ Petition is disposed as above. No costs. Connected Miscellaneous Petition is closed

1. Reliance is placed on the decision of Hon’ble Madras High Court in the case of PMP STEELS WP Nos. 11450, 11452 & 11453 of 2021 [2021 Taxo.online 869] Dated: August 05, 2021, Hon’ble Court followed own decision of M/s SRI MUNIAPPA STEEL in this case and order for the supply of relied upon documents to the revenue, extract of the order is reproduced below for your reference.

PARA 4. In light of identity of facts and legal position qua the present case and the matter in W.P.No. 10489 of 2021  the same order is taken to be passed in these matters as well.

PARA 5. The impugned order is thus set aside. Let the statement and other particulars relied upon by the Officer in the impugned orders of assessment be supplied to the petitioner within a period of three (3) weeks from today. Thereafter, the petitioner shall be afforded an opportunity of hearing to put forth its submission and also file objections. Upon consideration thereof, speaking orders shall be passed by the Officer within a period of six (6) weeks from date of first hearing.

PARA 6. These Writ Petitions are disposed as above. No costs. Connected Miscellaneous Petitions are closed

12. Reliance is placed on the decision of Hon’ble Karnataka High Court in the case of M/s THOPPIL AGENCIES WRIT PETITION NO.116528/2019 (T-RES) [2020 Taxo.online 582] DATED: 12.08.2020, Hon’ble Court set aside the order passed by revenue on the basis of non supply of relied documents and cross examine, relevant extract of the order is reproduced below for your reference.

In addition to making submissions with regard to the various contentions urged by the petitioner in the petition with reference to the documents and the impugned order, learned Senior counsel also submitted that the impugned order is violative of principles of natural justice. He points out that a perusal of the show cause notice at Annexure-B4 dated 13.11.2019 will indicate that only certain documents have been referred to by the respondent No.1 and that the same has been duly replied to by the petitioner vide Annexures-C and C1. However, without giving any personal hearing to the petitioner and without affording sufficient and reasonable opportunity to the petitioner, the respondent NO.1 has proceeded to pass the impugned order at Annexure-E placing reliance upon several documents which were never brought to the notice of the petitioner prior to passing of the impugned order. It is therefore, contended that apart from other legal and factual infirmities contained in the impugned order, the same is in total contravention of the principles of natural justice and that the same is liable to be quashed on this ground alone.

PARA 4. Per contra, learned AGA appearing for the respondents would support the impugned order and contend that there is no merit in the petition, particularly in the light of the remedy by way of appeal available to the petitioner and as such, the writ petition is liable to be dismissed.

PARA 5. Having heard both sides and perused the material on record, I am of the considered opinion that without going into the legal and factual aspects of the matter, it can be seen from the impugned order at Annexure-E that several documents and circumstances which were neither referred to nor enumerated in the show cause notice at Annexure-B4 have been relied upon by the respondent No.1 in the impugned order. It is not in dispute that no opportunity of personal hearing was given to the petitioner before passing the impugned order. The material on record also indicates that several documents relied upon by the respondent No.1 in the impugned order at Annexure-E were neither brought to the notice of the petitioner nor was he permitted to cross-examine the witnesses with reference to the said documents. Further, no opportunity to produce additional documents was given to the petitioner.

PARA 6. The aforesaid facts and circumstances will indicate that in the absence of sufficient and reasonable opportunity being granted in favour of the petitioner, the impugned order is clearly in contravention of principles of natural justice and that the same deserves to be set aside on this ground alone and the matter deserves to be remitted back to the respondent No.1 to consider and dispose off the same afresh in accordance with law after providing sufficient and reasonable opportunity to the petitioner to put forth his contentions and documents and to hear the petitioner before passing suitable orders.

PARA 7. In the result, I pass the following;

4.   ORDER

25. The impugned order at Annexure-E dated 25.08.2019 is hereby quashed;

26. The matter is remitted back to the respondent No.1-Assistant Commissioner for fresh disposal in accordance with law after hearing the petitioner on all aspects of the matter including the documents relied upon by the respondents and by affording sufficient and reasonable opportunity to the petitioner to contest the proceedings;

27. The respondent No.1 is directed to furnish copies of all the documents relied upon by him in the impugned order and all other documents he wishes to rely upon to the petitioner;

28. The respondent No.1 is also directed to dispose off the matter afresh bearing in mind the circular dated 31.12.2018 issued by the Government of India under Section 168 of the Act;

29. The petitioner is also at liberty to cross-examine any witness with reference to any of the documents relied upon by the respondents;

30. The petitioner is also at liberty to produce the additional documents in support of his contentions;

31. Having regard to the Covid-19 pandemic exigency, the respondent No.1 is directed to permit the petitioner to contest the proceedings online by Video Conferencing. However, all arrangements in this regard are directed to be made by the petitioner at his own cost;

32. Having regard to the fact that the goods involved are perishable items, the respondent No.1 is directed to dispose off and conclude the proceedings within a period of one month from today;

33. All rival contentions are kept open.

In view of the disposal of the petition, pending applications, if any, do not survive for consideration.

In the case of  Selvi Paper Mills Ltd Vs. CCE 2016 Taxo.online 49 it is held that considering the fact that the appellants were not supplied with the un-relied upon documents, in that situation, the Adjudicating authority is directed to supply the remaining documents which were seized and not relied upon to them appellants, so that the appellants shall be able to reconcile their records and thereafter the adjudicating authority will do the fresh adjudication. In view of this observation, the matter is remanded to the adjudicating authority with the direction to supply the non-relied upon documents to the appellants and thereafter fix a date for final hearing of the matter

We would also reliance on the decision of Hon’ble Rajasthan High court held in the case of PGO Processors Pvt. Ltd. v. CCE 2016 Taxo.online 50 that

PARA 15. In the light of the aforesaid discussion, we allow this petition and direct the respondent No. 1 to furnish authentic copies of the documents relied upon in the show cause notices dated 15.01.1999 and 31.05.1999, as enumerated in the petitioner's letter dated 19.06.1999 addressed to the respondent No. 1 and proceed to adjudicate on the show cause notice only after supply of such copies.

We have also demanded the reliance upon documents from the Lrd PO but not shared with us. 

5.   Acceptance and Request

• In the view of foregoing, it is respectfully prayed that the appeal may please be allowed and Hon’ ble Appellate Authority is also prayed :-

1. To Quash and set aside the demand order appealed against appellant

2. That necessary relief/s as per aforesaid grounds may be granted and/or other relief/s deemed fit and proper in the eyes of law may be granted to the appellant.

• We would request you to drop the Show Cause Notice and we would further request your lordship to provide us “Opportunity of Being Heard” before passing any order against us.

Thanks & Regards

For Company Name

Authorized person

Designation

Annexure: