2016 (2) TMI 255 - HC - Service Tax

Condonation of delay in filing an appeal before Commissioner (Appeal) - writ petition - jurisdiction to entertain a writ petition under Article 226 of the Constitution - Held that - In the present case, quite apart from the petitioner presenting the appeal beyond the period what the Commissioner could condone, had simply not responded to the show-cause notice issued by the adjudicating authority. We have noticed that after receipt of show-cause notice, for months together, petitioner filed no reply. The order of adjudication came to be passed more than a year later. At no point of time, the petitioner either filed a reply or even participated in the adjudication proceedings. The adjudicating authority has recorded that, several notices for personal hearing were issued under registered A.D., despite which, neither the petitioner nor its authorized representative ever appeared before him. Surely, the law does not come to the aid of indolent, tardy or lethargic litigant. The conduct of the petitioner would dissuade us from entertaining these petitions. - Decided against the appellant.

Issues:
1. Failure to obtain registration and pay service tax.
2. Dismissal of appeal due to delay in filing.
3. Exemption claim and reduction of tax demand.
4. Legal validity of the order in original.
5. Court's jurisdiction under Article 226 of the Constitution.
6. Statutory limitations on appeal period and extension.

Issue 1: Failure to obtain registration and pay service tax
The petitioner, engaged in construction activities, failed to obtain registration under service tax and did not pay the tax. Despite a show-cause notice and multiple opportunities for a hearing, the petitioner did not respond, leading to the authorities confirming the duty demand with interest and penalties.

Issue 2: Dismissal of appeal due to delay in filing
The petitioner's appeal was dismissed due to a delay of 48 days, exceeding the maximum 30-day limit for condonation. The petitioner argued that the Court, under Article 226, could review the order's legality, citing precedents and the Panoli Intermediate case. However, the dismissal was upheld based on the non-condonable delay.

Issue 3: Exemption claim and reduction of tax demand
The petitioner contended that applying the appropriate exemption notification would significantly reduce the tax demand, as 67% of the value of raw material consumed in construction work was exempt. The adjudicating authority's reliance on figures from the petitioner's balance sheet was challenged.

Issue 4: Legal validity of the order in original
The petitioner sought to challenge the legality and propriety of the order in original passed by the adjudicating authority. The Court's jurisdiction under Article 226 was invoked to examine the order, emphasizing the need for justice and adherence to legal procedures.

Issue 5: Court's jurisdiction under Article 226 of the Constitution
The Court acknowledged its jurisdiction under Article 226 to entertain writ petitions even after the appeal period had lapsed. However, it recognized the legislative intent for finality in excise and customs orders, urging prompt appeals within the prescribed limitation period.

Issue 6: Statutory limitations on appeal period and extension
Despite statutory limitations on appeal periods and extensions, the High Court's power under Article 226 remained intact. Precedents and guidelines were cited to illustrate the Court's discretionary power in extraordinary circumstances, balancing the need for justice with statutory limitations.

In conclusion, the petitions were dismissed due to the petitioner's failure to respond to the show-cause notice, participate in adjudication proceedings, and the delay in filing the appeal beyond the condonable period. The Court emphasized the importance of timely legal action and the need to avoid undue delays in seeking redressal.

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