2018 (8) TMI 1405 - HC - Service Tax

Condonation of delay in filing appeal - appeal rejected on the ground that the same was filed beyond the period of limitation - Held that - Admittedly, the petitioner has filed the Appeal before the second respondent. However, as there was a delay of 13 days in filing such appeal, the second respondent refused to entertain the same - the order of the second respondent in rejecting the appeal only on the ground of limitation cannot be sustained, especially, when the petitioner has stated the reasons for filing such appeal with 13 days delay and when such reasons are not found to be either false or imaginary. In any event, as the delay is only 13 days, the second respondent ought to have condoned the delay and considered the matter on merits - Writ Petition is allowed in part only by setting aside the order of the second respondent - matter is remitted back to the second respondent for deciding the said Appeal on merits and in accordance with law.

Summary

Issues:
Challenge to order in original and order in appeal based on service tax demand, delay in filing appeal, refusal to entertain appeal on grounds of limitation.

Analysis:
The Writ Petition challenged the order in original dated 25.01.2017 by the first respondent and the Order in Appeal dated 28.02.2018 by the second respondent. The petitioner, engaged in Business Process Outsourcing, received a show cause notice proposing a demand for differential service tax amount. The first respondent confirmed the tax demand, interest, and penalty. The petitioner filed an appeal before the second respondent with a delay of 13 days, explaining the delay due to personnel changes and misplacement of the original order. The second respondent refused to entertain the appeal solely based on the delay, without considering the merits of the case.

The High Court noted that in fiscal matters, challenging an order of adjudication through a Writ Petition is impermissible as the statutory appellate remedy must be exhausted. The Court refrained from delving into the specifics of the first respondent's order, as the appellate authority is responsible for reviewing and deciding on such matters. While the petitioner did file the appeal with a 13-day delay, the Court found the second respondent's refusal to entertain the appeal solely on grounds of limitation unjustified. The reasons provided by the petitioner for the delay were not found to be false or imaginary. The Court opined that a delay of 13 days should have been condoned, and the case should have been considered on its merits.

Therefore, the Court partially allowed the Writ Petition by setting aside the second respondent's order and remitting the matter back to the second respondent for a decision on the appeal's merits within eight weeks. The Court did not express any opinion on the merits of the contentions raised by the petitioner or the first respondent's order. The miscellaneous petition was closed without imposing any costs.