2019 (1) TMI 1675 - HC - Service Tax

Condonation of delay in filing petition - service of order - HELD THAT - Though it is contended in the writ petition that the impugned order was never served upon the petitioner and it was in the month of August 2018 only when he could know about the said order, but it is nowhere stated in the writ petition as to on which date and by which mode he came to know about the impugned order - In the absence of any such plea, the Court observes that the impugned order was well within the knowledge of the petitioner from the very inception, but the petitioner slept over his rights for a considerable time and chose not to file statutory appeal within the period of limitation and now after expiry of period to file the appeal, the petitioner has filed the writ petition belatedly. Petition dismissed.

Summary

Issues:
1. Maintainability of the writ petition due to the availability of a statutory remedy of appeal under section 85 of The Finance Act, 1994.
2. Allegation of delay in filing the writ petition due to non-receipt of the order and lack of opportunity of hearing.
3. Whether the petitioner's claim of not receiving the order and delay in filing the petition is justified under the circumstances.

Analysis:
1. The respondents argued that the writ petition was not maintainable as the petitioner had a statutory remedy of appeal under section 85 of The Finance Act, 1994. Reference was made to a previous case where a similar writ petition was dismissed on grounds of laches and the availability of an alternative remedy.
2. The petitioner's counsel contended that there was no delay in filing the writ petition, attributing any delay to the non-receipt of the order. The petitioner claimed that he did not receive any notice from the respondent authority and was penalized without being given an opportunity to be heard. It was argued that the respondents did not provide a copy of the order or the basis for imposing the penalty, which is against established legal principles.
3. The Court noted that while the petitioner alleged not receiving the order until August 2018, crucial details such as the date and mode of receipt were missing from the petition. The Court observed that the petitioner had knowledge of the order from the beginning but delayed taking action. As the petitioner failed to file a statutory appeal within the limitation period and chose to file the writ petition after the appeal period had expired, the Court found the petition lacking merit and dismissed it, emphasizing that factual controversies cannot be resolved in writ jurisdiction.

This judgment highlights the importance of timely action and adherence to legal procedures, especially in cases where statutory remedies are available. The Court's decision underscores the significance of providing opportunities for hearing and following due process in imposing penalties, emphasizing the principles of natural justice and the Constitution of India.