2015 (9) TMI 1466 - HC - Service Tax

Whether the appellant herein, the writ petitioner, can challenge the order dated 31st December, 2012 passed by the Additional Commissioner in the writ jurisdiction on the ground of patent illegality and want of jurisdiction after expiry of the period of limitation prescribed in Section 85(3A) of the Finance Act, 1994 - Held that - it is a settled proposition of law that an authority under the State should have the power to decide an issue. If the authority lacks jurisdiction, an order passed is non est in the eye of law. Since lack of jurisdiction in deciding an issue goes to the root of the matter, a writ petition can be filed questioning the jurisdiction of an authority to pass an order. So as under Section 85(3A) the maximum time limit to prefer statutory appeal is three months, if the petitioner-company was aggrieved by the order dated 31st December, 2012 on the ground that the authority lacked jurisdiction, being conscious of its rights, it should have filed the writ petition challenging the said order within the said prescribed period of limitation. It is to be borne in mind that the provision stipulating the period of limitation under Section 85(3A) has to be strictly construed as any other interpretation would defeat the very object of enacting the said provision. If the prayer of the appellant is allowed, it would encourage the litigants to approach the High Court in the Writ Jurisdiction by filing a writ petition at any point of time which would open a floodgate of litigations making Section 85(3A) otiose. - Decided against the appellant

Summary

Issues:
1. Condonation of delay in filing the appeal.
2. Challenge against the judgment and order dated 25th June, 2015.
3. Jurisdiction of the Additional Commissioner in passing the order dated 31st December, 2012.
4. Filing of statutory appeal beyond the period of limitation.
5. Interpretation of Section 85(3A) of the Finance Act, 1994.
6. Challenging the order in the writ jurisdiction after the expiry of the limitation period.

Analysis:

Issue 1: Condonation of delay in filing the appeal
The delay of two days in filing the appeal was condoned by the Court with the consent of both parties. The appeal was treated as on day's list and taken up for hearing.

Issue 2: Challenge against the judgment and order dated 25th June, 2015
The appeal was preferred against the judgment and order dated 25th June, 2015, which dismissed the writ petition challenging various orders under the Finance Act, 1994 and the Service Tax Rules, 1995. The appellant sought relief based on the Supreme Court judgment in State of U.P. v. Mohd. Nooh, arguing that the initial order was erroneous and should have been interfered with.

Issue 3: Jurisdiction of the Additional Commissioner
The appellant argued that the Additional Commissioner lacked jurisdiction in passing the order dated 31st December, 2012, leading to subsequent dismissal of the statutory appeal as time-barred. The appellant contended that the order was erroneous as the Additional Commissioner wrongly assumed jurisdiction.

Issue 4: Filing of statutory appeal beyond the period of limitation
The Commissioner (Appeals) dismissed the appeal as time-barred, a decision upheld by the CESTAT. The respondent argued that the appellant should have filed the statutory appeal within the prescribed time limit, and failure to do so precluded challenging the order subsequently.

Issue 5: Interpretation of Section 85(3A) of the Finance Act, 1994
Section 85(3A) mandates that an appeal must be presented within two months, extendable by one month for sufficient cause. The Court considered whether the appellant could challenge the order after the limitation period expired, emphasizing the strict construction of the limitation provision.

Issue 6: Challenging the order in the writ jurisdiction after the expiry of the limitation period
The Court held that lack of jurisdiction by an authority renders its order non est in the eye of the law. The appellant's delay in challenging the order beyond the limitation period under Section 85(3A) was not permissible, as it would defeat the purpose of the provision and encourage litigants to bypass statutory procedures.

In conclusion, the appeal was dismissed, and the application was also dismissed, with no order as to costs. The Court emphasized the importance of adhering to statutory limitation periods and the consequences of challenging orders beyond the prescribed timelines.