2018 (4) TMI 976 - HC - Service Tax

Writ of mandamus directing the respondents herein to issue a certified copy of the order-in-original No.47 of 2011 dated 26.05.2011 so as to enable the appellant to file an appeal under the provisions of the Central Excise Act 1944 - non service / communication of the order-in-original - Held that - Order-in-original is of the year 2011. No prejudice would be caused to the respondents if a fresh certified copy of the same is furnished. Inasmuch as the appellant had already received the copy of the order-in-original No.47 of 2011 dated 26.05.2011 as early as on 15.09.2011 it is made clear that limitation would commence only from 15.09.2011 and not from the date of receipt of another certified copy of the order-in-original No.47 of 2011 dated 26.05.2011. In the light of availability of an alternate remedy order-in-original No.47 of 2011 dated 26.05.2011 cannot be set aside - appeal dismissed - decided against appellant.

Issues:
1. Non-communication of order-in-original No.47 of 2011 dated 26.05.2011 to the appellant.
2. Mandamus for a certified copy of the order-in-original No.47 of 2011 dated 26.05.2011.
3. Grounds of appeal against the impugned order dated 12.12.2012.
4. Violation of statutory provisions under the Central Excise Act of 1944 and constitutional provisions.
5. Failure to permit filing of appeal under the Central Excise Act of 1944.
6. Violation of principles of natural justice.
7. Alleged non-compliance with the procedure established by law under Article 265 of the Constitution of India.

Analysis:

1. The appellant contended that the order-in-original No.47 of 2011 dated 26.05.2011 was not communicated to them, leading to the request for a certified copy. However, the writ court found evidence that the order was dispatched and received by the appellant, as confirmed by the postal acknowledgment card. The court dismissed the plea of non-service, stating that the appellant had received the order and had to pursue remedies accordingly.

2. The appellant sought a mandamus for a certified copy of the order-in-original to file an appeal. The court noted that the copy had already been dispatched and received by the appellant. As the copy was furnished to the appellant's counsel, the court ruled that no further direction was necessary, closing the writ petition without costs.

3. The impugned order was challenged on various grounds, including the failure to file a counter affidavit, lack of opportunity to inspect certain files, and the threat of recovery proceedings. The court examined these contentions but ultimately upheld the validity of the impugned order, stating that the appellant had received the certified copy and had not been denied remedies.

4. Allegations of violations of statutory provisions and constitutional rights were raised, including Article 14 and Article 265 of the Constitution of India. The court addressed these arguments but found no merit in the contentions, maintaining the validity of the impugned order.

5. The appellant argued that they were not permitted to file an appeal due to the non-furnishing of the certified copy of the order. The court acknowledged this claim but emphasized that the appellant had already received the copy in question, leading to the dismissal of the appeal against the order-in-original.

6. Violations of natural justice principles were alleged, claiming that the respondents had no standing to recover service tax due to the appellant's inability to file an appeal. The court considered this argument but concluded that the appellant had received the necessary documents and had to pursue legal remedies accordingly.

7. Lastly, the appellant contended that the respondents had not followed the legal procedure mandated by Article 265 of the Constitution of India. The court reviewed this claim but found that the recovery proceedings were not against constitutional mandates, leading to the dismissal of the appeal challenging the impugned order.

In conclusion, the court dismissed the appeal against the order-in-original No.47 of 2011 dated 26.05.2011, while allowing the appeal for a certified copy of the same within a specified timeframe. The court upheld the validity of the impugned order and rejected the various grounds of appeal raised by the appellant, emphasizing the importance of following legal procedures and pursuing available remedies.

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