2014 (2) TMI 539 - HC - Service Tax

Filing of appeal before wrong Forum - order imposing service tax and penalty erroneously stated that an appeal would lie therefrom to the Customs, Excise and Service Tax Appellate Tribunal. The petitioner cannot therefore be faulted with for filing an appeal with the tribunal though in fact such appeal would lie to the second respondent Commissioner only. Tribunal has adopted a hypertechnical view forgetting the fact that every endeavour should be made to dispose of the lis on merits. - The first respondent (CESTAT) shall return Ext.P2 appeal to the petitioner within a period of one month from today. The petitioner shall re-present the appeal with the second respondent Commissioner within a period of two weeks therefrom. Every endeavour shall be made by the second respondent Commissioner to dispose of the appeal on merits within a period of three months after its preferment.

Issues:
1. Error in the order imposing service tax and penalty.
2. Rejection of the appeal by the first respondent tribunal.
3. Corrective measures and justice for the petitioner.
4. Directions for re-presentation of the appeal before the second respondent Commissioner.

Issue 1: Error in the order imposing service tax and penalty

The judgment highlighted that the initial order erroneously stated that an appeal could be made to the Customs, Excise and Service Tax Appellate Tribunal, leading the petitioner to file an appeal with the wrong authority. The court acknowledged the mistake and emphasized that the litigant should not suffer due to the court's error. It was noted that the appeal should have been made to the second respondent Commissioner instead.

Issue 2: Rejection of the appeal by the first respondent tribunal

The first respondent tribunal rejected the appeal as not maintainable, despite the petitioner's plea to return it for re-presentation to the correct authority. The judgment criticized the tribunal for adopting a hypertechnical view, emphasizing the importance of focusing on the merits of the case. The court observed that the petitioner, although receiving the corrected order before filing the appeal, did not notice the correction and proceeded based on the original order. The tribunal's decision was deemed unjust, and it was directed to return the appeal to the petitioner for re-presentation to the second respondent Commissioner.

Issue 3: Corrective measures and justice for the petitioner

The court highlighted the carelessness of both the appellate and the Registry in not recognizing the appeal's incorrect filing. It was noted that the Registry should have returned the appeal promptly, allowing the petitioner to seek justice from the Commissioner (Appeals). The judgment stressed the need to ensure that the appeal is disposed of on its merits, rather than focusing solely on technicalities. The petitioner was given the opportunity to re-present the appeal to the correct authority for a fair consideration of the case.

Issue 4: Directions for re-presentation of the appeal before the second respondent Commissioner

The court directed the first respondent to return the appeal to the petitioner, who was instructed to re-present it before the second respondent Commissioner within a specified timeframe. The second respondent Commissioner was urged to expedite the disposal of the appeal on its merits within a stipulated period after its re-presentation. The petitioner was also required to produce a copy of the Writ Petition with the judgment for compliance purposes, thereby concluding the disposal of the Writ Petition.

In conclusion, the judgment addressed the errors in the initial order, the rejection of the appeal by the tribunal, the need for corrective measures and justice for the petitioner, and provided clear directions for the re-presentation of the appeal before the correct authority.

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