2017 (7) TMI 415 - HC - Service Tax

Maintainability of petition - pre-deposit - delay in filing an appeal before the tribunal - Held that - the petitioner has not complied with the pre-deposit issue. This appears to be a factual error as the demand of ₹ 14 lakhs as ordered by the first respondent was paid through banking channel. Therefore, the conclusion arrived requires interference. Whether the first respondent was justified in dismissing the appeal filed by the petitioner as being time-barred? - Held that - the law of limitation is not intended to defeat the rights of parties except those who are adopting dilatory tactics or purposely evading the proceedings - Misplacing of papers appears to be genuine mistake and the delay also is not inordinate. The delay in filing the appeal before the first respondent is condoned - petition allowed - decided in favor of petitioner.

Issues:
Challenging order passed by first respondent; Failure to avail alternative remedy before Tribunal; Dismissal of appeal as time-barred; Compliance with pre-deposit issue; Condonation of delay in filing appeal.

Challenging Order Passed by First Respondent:
The petitioner challenged the order passed by the first respondent under Appeal No.254/2016, related to demand of service tax. The petitioner contended that the order was challenged on grounds other than the merits of assessment, justifying the approach to the High Court without availing the alternative remedy before the Customs, Excise and Service Tax Appellate Tribunal (Tribunal). The High Court entertained the writ petition based on the peculiar facts and circumstances presented.

Failure to Avail Alternative Remedy Before Tribunal:
The petitioner had the right to appeal before the Tribunal but chose to approach the High Court directly. The petitioner explained that due to specific circumstances of the case, the writ petition needed to be entertained by the High Court. The Court considered this explanation and proceeded with the case, emphasizing the importance of exhausting alternative remedies before approaching the High Court.

Dismissal of Appeal as Time-Barred:
The first respondent dismissed the petitioner's appeal as time-barred, citing a delay of 2 months and 28 days in filing the appeal. The petitioner explained that the delay was due to misplaced papers, which were later recovered, and there was no evidence to suggest otherwise. The High Court noted that the delay was not inordinate and within the condonable period, deciding to exercise discretion and condone the delay to ensure the matter could be adjudicated on its merits.

Compliance with Pre-Deposit Issue:
The petitioner had complied with the pre-deposit requirement by paying the ordered sum through banking channels. However, the first respondent erroneously concluded that the petitioner had not fulfilled this condition. The High Court recognized this factual error and deemed it necessary to intervene in this aspect of the first respondent's decision.

Condonation of Delay in Filing Appeal:
Considering the genuine reason for the delay in filing the appeal and the absence of dilatory tactics, the High Court decided to allow the writ petition, setting aside the impugned order and directing the appellate authority to register the appeal, hear the petitioner, and pass a reasoned order on merits and in accordance with the law. The delay was condoned to ensure the petitioner's rights were not defeated unjustly.

In conclusion, the High Court allowed the writ petition, set aside the order, condoned the delay in filing the appeal, and directed the appellate authority to proceed with the case.

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