2019 (7) TMI 1509 - HC - Service Tax

Rectification of mistake - the petitioner has been intimated that his application for rectification of some mistake could not be entertained for the reason that he had filed the said application seeking rectification of some mistake in the show cause notice and such rectification of show cause notice under section 74 of the Finance Act, 1994 is not envisaged - HELD THAT - Since the petitioner has already availed the statutory remedy seeking rectification of mistake in the order, as has alleged by the learned counsel for the petitioner, he could not be permitted to pursue two parallel remedies, one by invoking section 74 of the Finance Act,1994 and the other by filing the writ petition under Article 226 of the Constitution of India. These writ petitions are finally disposed of with the direction to the authority concerned to consider and decide the application dated 28.05.2019 which has been annexed as annexure 5 to the writ petition and is said to have been preferred by the petitioner seeking rectification of the mistake in the order dated 20.03.2018, under section 74 of the Finance Act, 1994.

Summary

Issues:
Challenge to order confirming service tax demand, late fee, and penalty imposition; Challenge to notice of attachment; Rectification of mistake in the order dated 20.03.2018 under section 74 of the Finance Act, 1994; Pursuing parallel remedies under section 74 of the Finance Act, 1994 and filing a writ petition under Article 226 of the Constitution of India.

Issue 1: Challenge to order confirming service tax demand, late fee, and penalty imposition:
The primary challenge in the matter was to an order dated 20.03.2018 passed by the Assistant Commissioner, Central Goods and Service Tax, Division-III, Lucknow, confirming the service tax demand and imposing late fee and penalty. The petitioner had previously filed a writ petition challenging a show cause notice and seeking a certified copy of the final orders, which was disposed of by a Division Bench directing the final order to be furnished to the petitioner. Subsequently, the petitioner filed another writ petition challenging a notice of attachment after the service of the order dated 20.03.2018.

Issue 2: Challenge to notice of attachment:
Following the order dated 20.03.2018, the petitioner filed a writ petition challenging the notice of attachment. The counsel for the respondents-department informed the Court about an order dated 08.04.2019, where the petitioner's application for rectification of a mistake in the show cause notice was not entertained as rectification of show cause notice under section 74 of the Finance Act, 1994 was deemed not envisaged.

Issue 3: Rectification of mistake in the order dated 20.03.2018 under section 74 of the Finance Act, 1994:
The petitioner had filed an application seeking rectification of the order dated 20.03.2018 under section 74 of the Finance Act, 1994. However, it was highlighted that pursuing parallel remedies, one under section 74 of the Finance Act, 1994, and the other by filing a writ petition under Article 226 of the Constitution of India, was not permissible. The Court directed the competent authority to consider and decide the application for rectification dated 28.05.2019, filed by the petitioner, within four weeks from the date of communication of the order.

Issue 4: Pursuing parallel remedies under section 74 of the Finance Act, 1994 and filing a writ petition under Article 226 of the Constitution of India:
The Court emphasized that since the petitioner had already sought rectification of the mistake in the order dated 20.03.2018 under section 74 of the Finance Act, 1994, pursuing two parallel remedies was not allowed. The Court directed the authority to decide the application for rectification within four weeks and required the petitioner to be present before the appropriate authority on a specified date to present his case.

This judgment addressed various issues related to the challenge to the service tax demand order, rectification of mistakes, and the permissibility of pursuing multiple remedies simultaneously. It emphasized the importance of following due process and directed the competent authority to decide on the rectification application promptly.