2019 (2) TMI 1180 - HC - Service Tax

Maintainability of petition - alternative remedy of statutory appeal - post-decisional SCN - time limitation of SCN u/s 73(2) of the Finance Act - Exemption notification dated 24.05.2010 and 20.06.2012 not considered - Held that - The statutory period for filing such appeal has expired while the matter is pending consideration before this Court. 4 weeks time is granted to the assessee to exhaust such remedy so available and should any appeal be filed within 4 weeks from today accompanied with the petition for condonation of delay, the appellate authority shall consider the same on its own merits and dispose of the same in accordance with law without being prejudiced by the outcome of the present proceeding and bearing in mind the pendency of the matter before the High Court - petition disposed off.

Summary

Issues:
1. Challenge to the order confirming demand of service tax for multiple years.
2. Premeditated show cause notice and post-decisional nature.
3. Issuance of show cause notice beyond the prescribed limitation period.
4. Non-consideration of exemption notifications in the order.

Analysis:
The petitioner challenged the order confirming the demand of service tax for the years 2011-12 to 2014-15. The petitioner's counsel raised three key issues to seek the court's intervention without resorting to the statutory appeal process. Firstly, it was argued that the show cause notice was premeditated and had a post-decisional nature. Secondly, it was contended that the notice was issued beyond the limitation period as per Section 73(2) of the Finance Act. Lastly, the petitioner claimed that certain exemption notifications were not considered in the impugned order.

The respondent's counsel informed the court that the order was appealable and highlighted that all raised issues were addressed in the impugned order. The court agreed with the respondent's objection and directed the petitioner to pursue the statutory appeal available under the Finance Act. The court disposed of the writ petition, allowing the petitioner to raise all issues in the statutory appeal.

The petitioner's counsel mentioned that the statutory appeal period had lapsed, but the matter was pending before the court. The court granted a 4-week period for the petitioner to file the appeal and petition for condonation of delay. It was specified that the appellate authority should consider the appeal on its merits without prejudice due to the ongoing court proceedings.

Additionally, the petitioner was permitted to seek interim relief, which would be considered accordingly. The court instructed the Department not to take coercive measures for the next 4 weeks following the impugned order. The writ petition was disposed of with these observations, providing the petitioner with the opportunity to pursue the statutory appeal process within the specified timeframe.