Sunil Vaidya, IRS (Retd.)
In this article I am taking two inter related definitions for discussion. The Central Goods and Services Tax Act, 2017 (Act) specifically defines ‘address of delivery’ and ‘address on record’ under sub-section (2) & (3), respectively, of section 2. It is worth to mention that none of the said term was defined in the Central Excise Act, 1944, Customs Act, 1962, The Finance Act, 1994 or Rules framed under the said Acts.
In general ‘address’ is defined as below;
‘a place where a person or organization may be communicated with’
The particulars of the place where someone lives or an organization is situated.
The word ‘address’ is not referring to postal address but refers to a reasonable identification of such a place, not necessarily a postal address but something which describes or identifies the place with reasonable identity. R. v. Bishop, (1959) 2 All ER 787, 791 (CA). [Prison Act, 1952, Sch. I para 1(1), S.29]- from Law Lexicon by P. Ramnath Ayier. (It is the British Prison Act)
Considering the above definition the address like, ‘steel factory, opposite Kalimata Mandir, Bhendi Bazar, Mumbai” can be considered as an address, provided the said steel factory, may be by name ‘XYZ’, gets identified by the said address.
However, the officers in the Department usually rely upon the term ‘address on record’. In case the assessee or trader is not traceable or absconding, the officer would prefer to send Notice or the Order to his address on record i.e. assessee’s address mentioned on any of the official documents like License, letterhead, Returns, statement recorded under any of the section of any Act, etc. Such service of Notice or Order or summons etc. on ‘address on record’ was/is considered as legal or valid under section 37C of the Central Excise Act,1944, the Finance Act,1994 (under section 83) or under section 153 of the Customs Act,1962. Interestingly, in none of the above sections the said term ‘address on record’ has been used or defined. The section 37C prescribes Service of Notice etc. as below;
SECTION 37C. Service of decisions, orders, summons, etc. — (1) Any decision or order passed or any summons or notices issued under this Act or the rules made thereunder, shall be served, –
(a) by tendering the decision, order, summons or notice, or sending it by registered post with acknowledgment due or by speed post with proof of delivery or by courier approved by the Central Board of Excise and Customs constituted under the Central Boards of Revenue Act, 1963 (54 of 1963) to the person for whom it is intended or his authorised agent, if any;
(b) if the decision, order, summons or notice cannot be served in the manner provided in clause (a), by affixing a copy thereof to some conspicuous part of the factory or warehouse or other place of business or usual place of residence of the person for whom such decision, order, summons or notice, as the case may be, is intended;
(c) if the decision, order, summons or notice cannot be served in the manner provided in clauses (a) and (b), by affixing a copy thereof on the notice board of the officer or authority who or which passed such decision or order or issued such summons or notice.
(2) Every decision or order passed or any summons or notice issued under this Act or the rules made thereunder, shall be deemed to have been served on the date on which the decision, order, summons or notice is tendered or delivered by post or courier referred to in sub-section (1) or a copy thereof is affixed in the manner provided in sub-section (1).
In clause (a) of above section 37C(1) of Central Excise Act,1944, it has been mentioned that decision or order etc. shall be served by tendering the decision, order, summons or notice, or sending it by registered post with acknowledgment due or by speed post. But natural, one has to assume that the Department will send the summons or notice etc. by registered post or by currier on the address available with it. However, in financial legal proceedings no such assumption/presumptions are considered to decide the matter.
The established legal definition of the term ‘address on record’ means the designated address recorded by the Department in the applicant’s or licensee’s application file or license file maintained by the Department’s licensure maintenance unit/Range/Division. It is the duty of the applicant or licensee to inform the Department of any change of address, and such changes must be made either through the Department’s website or by contacting the Department’s licensure maintenance unit/Range or Division office.
Considering the forgoing discussion ‘the record’ can be considered as official document submitted by the person to the Department. As it is submitted document by any person, the responsibility to inform change in the address or other details, lies wholly on such person. Therefore once the Notice, summons etc. sent as prescribed in the said Act, on known address or on address on record, is considered as Notice, summons etc. legally served.
It is interesting to see some of the judgments on the issue in hand.
[Payal Ashok Kumar Jindal vs. Captain Ashok Kumar Jindal 1992 (60) E.L.T. 19 (S.C.)]
Notice/Order – Service of – Order of Commissioner of Customs (Appeals) received by assessee – On remand, notice for de novo proceedings sent to same address by speed post acknowledgement due – Counsel for importer received one copy and filed writ petition for its non-service – HELD : It was incumbent on counsel to have verified the address when he received Appellate Authority’s order and intimated it to authorities in de novo proceedings to change the address – Claim of such intimation could not be accepted without proof – Section 153 of Customs Act, 1962.
Notice/Order – Service of – Department is bound to send notice only to address as per record – They cannot unilaterally change it without specific request from party about it – Therefore, service on address shown as per record is in terms of Section 153 of Customs Act, 1962.
Notice/Order – Service of – Each file has to be dealt separately by Department – Their knowledge of address of assessee in other proceedings is of no consequence – Section 153 of Customs Act, 1962.
Adjudication – Natural justice – Notice of personal hearing issued several times on address available on record – Despite that importer failed to appear – HELD : Failure to appear in response to notice was peril of importer, and consequences had to follow – Section 153 of Customs Act, 1962.”
[Eta General Pvt. Ltd. vs. Commissioner of Customs, Chennai2013 (291) E.L.T. 27 (Mad.)]
[Kharkia Alloys (P) Ltd. vs. Commissioner of C. Ex., Delhi-I]
[Bhargavraj Rameshkumar Mehta vs. Union of India 2018 (361) E.L.T. 260 (Guj.)
[Technicom Systems (I) Pvt. Ltd. vs. Deputy Commissioner of Customs 2019 (367) E.L.T. 597 (Bom.)]
In nutshell;
The legally established definition of the ‘address on record’ was discussed herein above. However, the said The Central Goods and Services Tax Act, 2017, intends to define address in two terms viz. “address of delivery” and “address on record” in unambiguous terms as below;
“Section 2:-
(2) “address of delivery” means the address of the recipient of goods or services or both indicated on the tax invoice issued by a registered person for delivery of such goods or services or both;
(3) “address on record” means the address of the recipient as available in the records of the supplier;”
Precisely, to establish the ‘address of delivery’ it requires that;
It is this ‘address of delivery’, of recipient of goods or service, mentioned by such registered person, on tax invoice of such goods or service.
In other words, for the said Act, it will not be considered as ‘address of delivery’, mentioned in the invoice, (i) which is not a tax invoice as per sub-section (66) of section 2 of the said Act, (ii) issued by non-registered person, and (iii) not meant for delivery of goods or service.
In the same manner ‘address on record’ is the address of the recipient which is available in the records of the supplier. However, considering the definition of ‘address of delivery’ under sub-section 2 of section 2 of the said Act, as mentioned supra, it may not be improper to say that there is no condition in the definition of ‘address on record’, under sub-section 3 of section 2, that the supplier of goods or service should be a registered person.
However, one can also construe that he can be a person, being a supplier, as prescribed in the definition of ‘supplier’ under sub-section (105) of section 2 of the said Act. But, again, the said definition of ‘supplier’ does not use the word ‘registered’ for supplier.
Conclusively it may be said that for the definition of “address on record” the supplier need not be a registered person. This aspect is useful for the Department to establish the address of the recipient in legal proceedings.
For ready reference the concerned definitions referred to supra under section 2 of the Act, but not reproduced above, are reproduced below;
“(66) “invoice” or “tax invoice” means the tax invoice referred to in section 31;*
*For Tax Invoice Rule 46 of the Central Goods & Services Tax Rules, 2017 may also be referred.
(93) “recipient” of supply of goods or services or both, means —
(a) where a consideration is payable for the supply of goods or services or both, the person who is liable to pay that consideration;
(b) where no consideration is payable for the supply of goods, the person to whom the goods are delivered or made available, or to whom possession or use of the goods is given or made available; and
(c) where no consideration is payable for the supply of a service, the person to whom the service is rendered,
and any reference to a person to whom a supply is made shall be construed as a reference to the recipient of the supply and shall include an agent acting as such on behalf of the recipient in relation to the goods or services or both supplied;
(105) “supplier” in relation to any goods or services or both, shall mean the person supplying the said goods or services or both and shall include an agent acting as such on behalf of such supplier in relation to the goods or services or both supplied;
(108) “taxable supply” means a supply of goods or services or both which is leviable to tax under this Act;”
(Author can be reached at Mobile No. 9987332353 or at E-mail:[email protected])