Various reliefs are claimed by the petitioner. It includes a direction to serve a copy of an Order issued under Section 129(3) of the Central Goods and Services Tax Act (for short, ‘the Act’) and not to invoke the bank guarantee furnished by the petitioner.

2. Petitioner claims to be engaged in the manufacture of gold ornaments as job work for others. On 29.08.2019, while a staff of the petitioner was travelling on a train, for supplying the ornaments to its principals after the job work, the Railway police intercepted him at 5.45 a.m. and registered FIR No.69/2019 at Palakkad Railway Police Station, suspecting commission of a crime. Subsequently, the seized gold ornaments were produced before the Judicial First Class Magistrate’s Court, Palakkad. A petition was submitted by the first respondent under Section 129 of the Act on 18.09.219, seeking detention of the gold while the petition sought interim custody of the gold. By order dated 15.10.2019, the learned Magistrate directed the seized gold to be returned to the petitioner on furnishing a bank guarantee as security as contemplated under Section 129 of the Act. On the basis of a bank guarantee furnished by the petitioner initially on 14.11.2019 (later corrected and resubmitted a fresh guarantee on 06.02.2020) the goods were released to the petitioner. Though in the meantime, an adjudication was held on 24.01.2020, pursuant to notice, petitioner alleges that no orders thereon were communicated to the petitioner.

3. It is alleged that in the meantime, petitioner was served with Ext.P8 notice dated 22.09.2021 invoking the bank guarantee submitted by the petitioner. On getting intimation of the invocation of bank guarantee petitioner noticed the reference to an order dated 25.01.2020, indicating it to be the final order under Section 129 of the Act. Petitioner claims that such an order had never been served upon the petitioner, to his knowledge. In the above circumstances, petitioner alleges that since the order has not been served upon the petitioner till date, its right to prefer an appeal under Section 107 of the Act could not be exercised and that before serving the copy of the order under Section 129(3), bank guarantee cannot be invoked. He therefore prays that its his right to pursue the statutory remedy of appeal against final order be made available to him, by issuing atleast a certified copy of the order and also restrain the invocation of the bank guarantee, till the appeal is considered.

4. The first respondent filed a counter affidavit specifying that the bank guarantee was initially submitted on 14.11.2015 and was corrected and resubmitted on 06.02.2020 and that there was no restriction on the first respondent passing an order under Section 129(3) of the Act, since the initial bank guarantee was submitted in November 2015 itself. Furthermore, it was pointed out that the order under Section 129(3) of the Act was issued on 25.01.2020 and a copy was sent by registered post to the petitioner on 28.01.2020 and was, in fact, received by the petitioner on 03.02.2020. It is further stated that the dispatch register maintained by the first respondent shows that the order was dispatched to the petitioner and the acknowledgement card evidenced receipt of the order by the petitioner. The copy of dispatch register and acknowledgement card were produced as Ext.R1(b) and Ext.R1(c). It was further pleaded in the statement as follows :-

“The respondent herein wishes to submit the facts of this matter in a concise manner. A person carrying 2767 grams of gold was intercepted by the Railway Police while he was travelling from Chennai to Thrissur on 29.08.2019 at 5.45 a.m. Upon interception, the person was asked to produce documents accompanying the gold. The person could not produce any documents and also could not give any explanation or detail as to where he was taking the gold and for what purpose. Suspecting smuggling, and since he had very huge quantity of gold with him, the Railway Police proceeded to arrest the person and lodged an FIR with JFCM-III, Palakkad on the very same day. A crime was registered as Crime No.69/2019. Thereafter, the petitioner, M/s. A.S. Jewellers appeared before the JFCM and claimed the ownership of the gold carried by the person. The petitioner claimed the ownership of 560 grams of gold ornaments as well as 1807 grams of gold bullion. The petitioner filed claim petitions before the JFCM Court. By this time, the State GST Department was intimated of this matter and the State Tax Officer, the respondent herein, filed an affidavit and petition before the JFCM Court claiming the tax component with regard to the transaction The mater was heard by the Hon’ble Court and interim custody of the gold was ordered to the petitioner on complying with the conditions with regard to submission of bank guarantee for the prescribed amount. Accordingly, the parties submitted a bank guarantee for the prescribed amount on 14.11.2019. However, on noting certain mistakes in the bank guarantee furnished, the respondent herein informed the petitioner that the same ought to be corrected, in satisfaction of the conditions of interim custody granted by the JFCM Court.

It was also pleaded that “ the respondent herein had issued and the petitioner had received the order in question. There is no irregularity in the proceedings undertaken by the respondent as well as the manner of communication of the final order of the adjudication. The petitioner has wrongly averred that the order was not received by him with malafides and nefarious intentions. The respondent is to understand from the averments, that the petitioner is relying upon the date of submission of corrected bank guarantee i.e. on 29.01.2020, to state that the order was not issued on 25.01.2020. It is submitted that the bank guarantee was submitted by the petitioner as early as on 14.11.2019 and all that happened on 29.01.2020 is submission of the corrected bank guarantee as communicated by the respondent herein to the petitioner with regard to submitting of the corrected bank guarantee. Further, the date of submission of the corrected bank guarantee and issuance of the order under Section 129 are unconnected matters. The bank guarantee was submitted pursuant to the order of the JFCM Court and the order of adjudication proceeded with by the respondent was under Section 129 of the GST Act, with regard to the goods that were carried by the person without the requisite documents prescribed under the Act”.  Respondents thus sought for the dismissal of the writ petition.

5. I have heard the arguments of Adv. Tomson T. Emmanuel, the learned counsel for the petitioner as well as Dr. Thushara James, the learned Senior Government Pleader for the respondent.

6. The first and foremost issue to be considered is whether petitioner was in receipt of the order issued by the first respondent under Section 129(3) of the Act. Service of notice under the Act is contemplated in Section 169 which reads as follows :-

169. Service of notice in certain circumstances

(1). Any decision, order, summons, notice or other communication under this Act or the rules made thereunder shall be served by any one of the following methods, namely:-

(a). by giving or tendering it directly or by a messenger including a courier to the addressee or the taxable person or to his manager or authorised representative or an advocate or a tax practitioner holding authority to appear in the proceedings on behalf of the taxable person or to a person regularly employed by him in connection with the business, or to any adult member of family residing with the taxable person; or

(b). by registered post or speed post or courier with acknowledgement due, to the person for whom it is intended or his authorised representative, if any, at his last known place of business or residence; or

(b). by registered post or speed post or courier with acknowledgement due, to the person for whom it is intended or his authorised representative, if any, at his last known place of business or residence; or

(c). by sending a communication to his e-mail address provided at the time of registration or as amended from time to time; or

(d). by making it available on the common portal; or

(e). by publication in a newspaper circulating in the locality in which the taxable person or the person to whom it is issued is last known to have resided, carried on business or personally worked for gain; or

(f). if none of the modes aforesaid is practicable, by affixing it in some conspicuous place at his last known place of business or residence and if such mode is not practicable for any reason, then by affixing a copy thereof on the notice board of the office of the concerned officer or authority who or which passed such decision or order or issued such summons or notice.

(2). Every decision, order, summons, notice or any communication shall be deemed to have been served on the date on which it is tendered or published or a copy thereof is affixed in the manner provided in sub-section (1).

(3). When such decision, order, summons, notice or any communication is sent by registered post or speed post, it shall be deemed to have been received by the addressee at the expiry of the period normally taken by such post in transit unless the contrary is proved.

7. Section 169 (1)(b) provides for service by registered post with acknowledgement due, while sub-clause (2) creates a deeming fiction as per which every decision or order shall be deemed to have been served on the date on which it is tendered as provided in sub-section (1). When a statute enacts that something shall be deemed to have been done, the Court has a duty to give effect to that fiction.

8. As per the statutory prescription and going by the averments in the counter affidavit as well as the documents produced, it is evident that petitioner can be deemed to have been tendered with the order under Section 129(3) on 03.02.2020. The fiction that is created does not leave any room for doubt and since the tendering of notice is by registered post with acknowledgement due, there is no scope for even assuming that the order was not served on the petitioner. In this context, this Court notices the pleading of the petitioner that he had received the notice for hearing scheduled on 24.01.2020. The copy of dispatch register showing that the order was dispatched on 28.01.2020 and the copy of acknowledgement card produced as Ext.R1(c), fortifies the above conclusion. Hence I find that the order under Section 129(3) of the Act was served on the petitioner on 03.02.2020.

9. However, having regard to the contention that petitioner had not received the order or that he may have misplaced the order due to which petitioner ought to be given a certified copy to enable him to pursue appropriate statutory remedy is a contention which merits consideration. Petitioner contends that he is entitled to claim the benefit of the condonation of period of limitation on account of the order of the Supreme Court in “Re: Cognizance for Extension of Limitation v.” reported in [(2021) 5 SCC 452)] and the subsequent order dated 23.09.2021 as per which, the period from 15.03.2021 till 02.10.2021 have been directed to be condoned by the Supreme Court in all applications under all statutes. Since the petitioner’s right to pursue an appeal cannot be curtailed solely on account of non-receipt of an order or loss of an order, if law otherwise permits him to pursue the appeal, then certainly it is incumbent upon the first respondent to issue a certified copy to the petitioner.

Accordingly I direct the first respondent to issue a certified copy of the order No. IX/CR-69/19/6207/19 dated 25.01.2020 to the petitioner in accordance with law forthwith. Needless to say, on receipt of certified copy, petitioner will be entitled to pursue its statutory remedies in accordance with law. It is also clarified that since this Court has exercised the discretion to direct certified copy to be served to the petitioner, invocation of Ext.P6 bank guarantee through Ext.P8 letter shall be kept in abeyance and the bank guarantee be kept alive for a period of 60 days from today to enable the petitioner to pursue the statutory remedies, if available.

The writ petition is disposed of as above.