2019 (2) TMI 1038 - HC - Service Tax

Maintainability of appeal - alternative remedy of appeal - the order was passed prior to the enforcement of Central Goods and Service Tax Act, 2017, which came in to effect on 01.07.2017 - section 85 of FA - Held that - We are persuaded to uphold the preliminary objection raised by Mr. Verma on the plea of alternative remedy of appeal available to the petitioner under section 85 of the Finance Act, 1994 - petitioner is given liberty to approach the appellate authority under section 85 of the Finance Act, 1994 - petition disposed off.

Issues:
Challenge to order confirming demand of service tax - Preliminary objection on availability of appellate remedy under section 85 of Finance Act, 1994 - Petitioner's appeal period expired - Petitioner's approach to High Court within prescribed period - Upholding preliminary objection - Granting liberty to approach appellate authority - Disposal of appeal within 3 months.

Detailed Analysis:

1. Challenge to order confirming demand of service tax:
The petitioner questioned the order dated 24.04.2017, passed by the respondent-Assistant Commissioner, Central Excise and Service Tax, confirming the demand of service tax. This formed the basis of the legal dispute brought before the court.

2. Preliminary objection on availability of appellate remedy under section 85 of Finance Act, 1994:
The counsel for the department raised a preliminary objection regarding the availability of an appellate remedy to the petitioner under section 85 of the Finance Act, 1994. The objection was based on the enforcement timeline of the Central Goods and Service Tax Act, 2017, which affected the appeal process for orders passed prior to its implementation.

3. Petitioner's appeal period expired:
It was noted that the period for filing an appeal under section 85 of the Finance Act, 1994 was 60 days, as indicated in the impugned order. The petitioner's appeal period had expired by the time the matter was brought before the court.

4. Petitioner's approach to High Court within prescribed period:
The petitioner's counsel argued that the petitioner had approached the High Court within the prescribed period of sixty days for filing the appeal, despite the delay in registering the writ petition.

5. Upholding preliminary objection and granting liberty to approach appellate authority:
After hearing both counsels, the court was persuaded to uphold the preliminary objection raised by the department's counsel regarding the availability of the appellate remedy under section 85 of the Finance Act, 1994. The petitioner was granted liberty to approach the appellate authority within 30 days to raise all issues presented in the writ petition and any other issues advised to be raised.

6. Disposal of appeal within 3 months:
The court directed that any appeal filed by the petitioner within 30 days, accompanied by a petition for condonation of delay, should be considered by the appellate authority. The appeal was to be disposed of within 3 months of its filing, ensuring both parties had an opportunity for a fair hearing without prejudice due to the delay or the court's order.

In conclusion, the writ petition was disposed of with the above observations and directions, emphasizing the importance of the petitioner utilizing the available appellate remedy under the specified provisions of the Finance Act, 1994.

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