2017 (4) TMI 859 - HC - Service Tax

Validity of challenge made against order-in-original - the appellant chose to take recourse to an appellate remedy against the order-in-original, albeit, after the prescribed period of limitation had expired - Held that - It is settled law that statutory forums and/or Courts, can and/or do decide matters both rightly and wrongly, albeit, within the limits of their respective jurisdictions. Erroneous orders of statutory forums and/or courts can only be corrected by a procedure known to law - keeping in view of the contention that the order-in-original was passed in breach of principles of natural justice, we can only state that, if, this assertion is correct, it is an error pertaining to jurisdiction, which could have, perhaps, been corrected, if, appropriate timely steps had been taken by the appellant, which could include a remedy by way of a petition filed under under Article 226 of the Constitution - after more than six years have expired, the appellant cannot be permitted to challenge the order-in-original via the present proceedings - appeal dismissed - decided against appellant.

Summary

Issues:
Challenging order-in-original after expiration of limitation period; Merger of order-in-original with CST (A) order; Breach of principles of natural justice in passing order-in-original; Applicability of Supreme Court judgment in Nizam Sugar Factory case; Errors of law or fact in the judgment; Jurisdictional errors in passing order-in-original.

Analysis:
The case involves an appeal against an order passed by a learned Single Judge in a writ petition. The appellant challenged an order-in-original dated 29.10.2010 after the expiration of the limitation period. The Commissioner of Service Tax (Appeals) dismissed the appeal due to the delay in filing. Subsequently, the appellant did not take any steps for a year until recovery notices were issued. The appellant filed a writ petition, which was dismissed by the Single Judge. An appeal to the Division Bench was also dismissed, stating that the limitation under Section 85 of the Finance Act could not be extended under Article 226 of the Constitution. The appellant did not challenge this decision. The appellant then filed another writ petition, which was dismissed by the Single Judge, leading to the current appeal.

The appellant raised several grounds for challenging the Single Judge's order, including breach of natural justice in passing the order-in-original, citing the Nizam Sugar Factory case judgment, and disputing the merger of the order-in-original with the CST (A) order. The appellant also contested factual inaccuracies noted by the Single Judge in the order. The High Court, after hearing arguments from both parties, upheld the Single Judge's decision. The Court emphasized that even if they disagreed with some reasons, the appellant had chosen to appeal after the limitation period had expired. The Court highlighted that the order-in-original had attained finality due to the appellant's inaction and the earlier Division Bench ruling. The Court cited legal principles that erroneous decisions by statutory forums can only be corrected through proper legal procedures, not through collateral challenges. As more than six years had passed, the Court concluded that the appellant could not challenge the order-in-original at this stage, leading to the dismissal of the Writ Appeal.