2014 (11) TMI 1066 - HC - Service Tax

Invokation of longer period of limitation - Demand - Short payment of Service tax - Held that - it needs to be established whether the department can at all invoke the longer period of limitation and secondly, whether the bank has made short payment of tax. If the claim, if any, of the department is barred by limitation, the merits need not be gone into. With those observations, matter is remanded back to Deputy Commissioner. - Decided in favour of appellant by way of remand

Summary

Issues:
1. Invocation of longer period of limitation by the department
2. Short payment of service tax by the bank
3. Dismissal of appeal by Commissioner (Appeals) on the ground of limitation
4. Power of Tribunal to condone delay in appeal

Analysis:
The High Court of Calcutta addressed the case involving the Central Bank of India, accused of short payment of service tax amounting to Rs. 4,43,827. The bank contended that the demand was time-barred and challenged the invocation of the longer period of limitation by the department. The Court noted that the adjudication order was unclear on the justification for invoking the longer limitation period and did not adequately consider the bank's defense. Despite confirming the charges in the show cause notice, the Court found the order lacking clarity.

The bank's appeal before the Commissioner (Appeals) was dismissed solely on the ground of limitation. Subsequently, the bank approached the Tribunal, which upheld the dismissal citing the Commissioner (Appeals) correctly exercising jurisdiction and lacking power to condone the delay of slightly over a year. The Court highlighted the limited power of the Commissioner (Appeals) in condoning delays and the Tribunal's role in reviewing jurisdictional correctness.

However, the High Court emphasized that the delay issue becomes insignificant when real justice is not served to a party. In such cases, the Court has the authority to pass orders to condone delays as deemed just and proper. The Court remanded the matter back to the Deputy Commissioner, Central Excise and Service Tax, for a fresh adjudication, setting aside previous orders. The Deputy Commissioner was directed to dispose of the show-cause afresh within six months from the communication of the Court's order.

In conclusion, the High Court allowed the writ application to the extent of remanding the case for reconsideration, emphasizing the importance of establishing the department's right to invoke the longer limitation period and determining the existence of any short payment by the bank. The Court's decision aimed to ensure a fair and just resolution of the matter within a specified timeframe.