2015 (4) TMI 40 - HC - Service Tax

Maintainability of appeal - Appeal previously dismissed as barred by limitation - Service Tax on the works undertaken by the petitioner - Held that - Issue is after availing the remedy unsuccessfully before another Court whether we can accept the challenge to the self same order, which has reached its finality under writ jurisdiction or not. According to us, it is not legally permissible, if it is done the writ court will unsettle a legally settled position. We think that when appellate authority has already decided the matter against the petitioner, the writ Court is debarred from doing so and the same binds the writ Court applying the principle of res judicata , particularly, when the appellate authority s orders are not challenged in the writ jurisdiction. - Petition not maintainable.

Issues:
1. Challenge to the levy of Service Tax by the 1st respondent.
2. Appeal process beyond the statutory period.
3. Applicability of Section 35(1) of the Act and the Limitation Act.
4. Interpretation of the judgment in Singh Enterprises vs. Commissioner of Central Excise.
5. Validity of maintaining a writ petition after unsuccessful appeal.

Analysis:
1. The petitioner challenged the levy of Service Tax by the 1st respondent as illegal, arbitrary, and amounting to double taxation. The High Court noted that the petitioner had already taken the matter to appellate authorities beyond the prescribed period of limitation, rendering the appeal unsuccessful due to being time-barred.

2. The Court referred to a judgment in a similar case involving M/s. Resolute Electronics Private Limited and Union of India, emphasizing the importance of adhering to statutory timelines for appeals. The Court highlighted that once the prescribed period for appeal expires, intentional or unintentional, the remedy becomes barred, and no court can entertain the matter.

3. The judgment discussed the provisions of Section 35(1) of the Act, which outlines the appeal process timeline. It was noted that even the provisions of Section 5 of the Limitation Act, 1963, cannot extend the appeal period beyond 90 days. The Court emphasized the rigidity of the statutory timelines and the inability of the court to extend them.

4. The Court cited the judgment in Singh Enterprises vs. Commissioner of Central Excise, which clarified the appellate authority's power to condone delays within the statutory limits. The judgment highlighted that the appellate authority can entertain appeals within a further period of 30 days if satisfied with the reasons for delay, excluding the application of Section 5 of the Limitation Act.

5. The Court addressed the argument that attempting an unsuccessful appeal before the appellate authority does not preclude the petitioner from filing a writ petition. However, the Court differentiated the present case from the cited Supreme Court judgment, emphasizing that challenging a legally settled position after an unsuccessful appeal is not legally permissible. The principle of res judicata was applied, stating that the writ court is bound by the appellate authority's decision if not challenged in the writ jurisdiction.

In conclusion, the High Court dismissed the writ petition, stating that it was not maintainable after the unsuccessful appeal process. The Court emphasized that challenging a matter already decided by the appellate authority would unsettle a legally settled position and rejected the contention of the petitioner's counsel. The judgment highlighted the importance of adhering to statutory timelines for appeals and the binding nature of decisions made by appellate authorities.

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