2018 (2) TMI 24 - HC - Service Tax

Principles of Natural Justice - condonation of delay in filing appeal - delay in filing appeal due to sickness of petitioner - Held that - it appears that there is a mistake, which had occurred even at the stage of issuance of the SCN. However, had the petitioner been vigilant, he could have placed necessary material to show that he is not liable to pay the service tax as demanded by the first respondent. Nevertheless, due his ailment and since he is bedridden, probably he was unable to take effective steps. Thus, taking note of the communication given by the second respondent dated 06.8.2014, this Court is inclined to grant one more indulgence to the petitioner to place the facts before the first respondent - appeal allowed by way of remand.

Summary

Issues:
1. Validity of notice demanding payment of service tax.
2. Ex parte adjudication due to non-response to show cause notice.
3. Appeal delay beyond limitation period.
4. Communication indicating mistake in awarding contract.
5. Granting further opportunity for presenting facts.

Analysis:
1. The petitioner challenged a notice demanding service tax payment issued under Section 87(b)(i) of the Finance Act, 1994. The notice was based on an Order in Original No.19/2011 ST dated 02.6.2011. The petitioner contended that the demand was erroneous as the work mentioned in the show cause notice was not awarded to him but to another individual, as confirmed by a communication from the second respondent dated 06.8.2014.

2. The petitioner failed to respond to the initial show cause notice, leading to ex parte adjudication by the first respondent. It was argued that due to the petitioner's illness and hospitalization, effective steps could not be taken in time. The High Court acknowledged the mistake in the issuance of the show cause notice and granted the petitioner an opportunity to present relevant material to contest the service tax liability.

3. The petitioner's son filed an appeal against the adjudication order after a delay of three years, beyond the prescribed limitation period. The Court noted that the appeal could not be entertained due to the delay. However, considering the circumstances and the communication indicating the mistake in awarding the contract, the Court decided to provide the petitioner with another chance to present his case before the first respondent.

4. The communication from the second respondent highlighted the error in attributing the contract to the petitioner, indicating that the adjudication process was flawed. The Court emphasized the importance of the petitioner's right to be heard and to present evidence to challenge the demand for service tax. The matter was remanded to the first respondent for re-adjudication based on the material that the petitioner would submit.

5. In conclusion, the High Court allowed the writ petition, setting aside the notice of demand and the Order-in-Original. The first respondent was directed to reconsider the case, granting the petitioner 15 days to submit objections and relevant documents. The Court emphasized the need for a fair adjudication process and granted the petitioner an opportunity to contest the service tax liability based on the new evidence to be presented.