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;
- As per Merriam Webster Dictionary the address is;
‘a place where a person or organization may be communicated with’
- As per Oxferd Dictionary it is;
The particulars of the place where someone lives or an organization is situated.
- However, the address is also defined as reasonable identification of a place as mentioned below;
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.
- “Service of notice, summons, orders and decisions – Postal remark “Addressee not found on the given address” not construable as refusal of notice – Corresponding Section 37C of Central Excises and Salt Act, 1944 and Section 153 of Customs Act, 1962.”
[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 – HELD : Notice was sent to address referred by importer in original proceedings as well as in appeal memorandum – Hence, plea of non-service of notice or the impugned order, rejected – It was more so as there was no intimation by assessee about change of address thereafter – Department could not send order to any other address except the one as per record, as otherwise it will amount to improper service –
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.)]
- “Appeal – Restoration of – Non-receipt of notice of hearing on stay application as well as final hearing – Two addresses were given by applicant in Appeal memorandum – Notice has been sent to only on first address – No effort to serve the notice on second address – Revenue’s plea that there is no vakalatnama of advocate on record, hence the registry is not required to serve the notice on second address, is not convincing – Applicant also filed affidavit in support of their contention – If the notice could not be served at one address, then the notice may be served on second address – Registry directed to restore the appeals to original number and to list the stay applications in due course.”
[Kharkia Alloys (P) Ltd. vs. Commissioner of C. Ex., Delhi-I]
- “Natural Justice – Personal hearing – Summonses issued to petitioner at the address of office of partnership firm as well as residence at Rajkot and later at petitioner’s address at Sharjah – Notices and summonses issued at Rajkot addresses returned undelivered with remarks premises locked – Summones dispatched at Sharjah not received back – Such notices displayed at Mundra Customs House – Thus sincere attempt made by Customs Authority for dispatch and serve notices and summonses – Principles of natural justice not violated.”
[Bhargavraj Rameshkumar Mehta vs. Union of India 2018 (361) E.L.T. 260 (Guj.)
- “Recovery of duty – Service of order-in-original – Section 153 of Customs Act, 1962 only requires that notice be served by sending it by registered post to intended person and does not require that effective service should be effected upon the person – Notice requiring assessee to pay outstanding Government dues based on order-in-original challenged on the ground that said order not served on assessee – Material on record indicating that notice as well as the order-in-original sent to assessee by registered post – Presumption available under Section 27 of General Clauses Act, 1897 to apply and failure by assessee to place material on record to rebut such presumption – Failure by assessee to intimate closure of factory or shifting of address to Department – No ground to interfere with order-in-original or impugned notice/communication which flow from order-in-original – Section 153 of Customs Act, 1962 – Article 226 of Constitution of India.”
[Technicom Systems (I) Pvt. Ltd. vs. Deputy Commissioner of Customs 2019 (367) E.L.T. 597 (Bom.)]
In nutshell;
- The address on record of the Department is considered for issue of Notice, summons or Order;
- To send the documents on any address other than address on record by the Department, will amount to improper service;
- In case postal authority did not find addressee on the given address still the Notice or summons will be considered as legally served;
- In case postal authority did not find addressee on the given address it will not be considered as refusal to receive the Notice or summons.
- In case of more than one address available on record, the Department should try to serve the Notice etc. at least on one of the address;
- In case of closure of factory or termination of partnership deed etc. it is necessary to serve the Notice, Summons or Order on the proprietor / partner / Director on their personal address on record;
- In case of legal proceedings, the Department is bound to consider an address in concerned file as an address on record, without referring to any other file of proceedings of the same person;
- To intimate the change of address is the responsibility of the person. Moreover, if required, it is also his responsibility to prove before the authority that the change of address was intimated to the Department.
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;
- the address can be referred from the invoice issued for sale of goods/service;
- the said invoice should be issued by a registered person;
- the said invoice, necessarily, has to be a tax invoice;
- the such tax invoice should be for delivery of goods or service;
- there should be a recipient of goods or service for goods or service covered by such tax invoice.
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])
