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2020 (4) TMI 347 - HC - Service TaxMaintainability of petition - time limittaion for filing appeal before the Commissioner (Appeals) - Business Auxiliary Services - HELD THAT - The impugned order was passed on 15.11.2012 and therefore, the appeal ought to have been filed within a period of 2 months before the Commissioner (Appeals) in terms of Section 85(3)(a) of Finance Act, 1994 or with an application to condone the delay within a period of 30 days thereafter. The petitioner did not choose it. Instead, the petitioner has filed the present Writ Petition on 17, September, 2013 - Since the Writ Petition has been filed beyond the limitation of period, it is liable to be dismissed. Reasons stated by the petitioner for belatedly approaching the Court appears to be genuine. The petitioner may turn to file a statutory appeal before the Appellate Commissioner, within a period of 30 days from the date of receipt of copy of this order. In case, the petitioner files a statutory appeal within the stipulated time herein, the 2nd respondent shall consider the appeal and pass orders on merits in accordance with law.
Issues:
1. Challenge to impugned proceedings dated 15.11.2012 regarding demand confirmation of Service tax and Education Cess under Business Auxiliary Service. 2. Contention of no service provider and recipient relationship between petitioner and M/s.Galileo / Amadeus India P Ltd. 3. Alternative remedy before the Commissioner (Appeals) and the timeliness of the writ petition filing. Analysis: 1. The petitioner challenged the impugned proceedings dated 15.11.2012, where the 2nd respondent confirmed the demand of &8377; 48,581/-, including Service tax and Education Cess under Business Auxiliary Service provided by the petitioner for the period of 01.04.2010 to 31.03.2011. The petitioner argued that there was no service provider and recipient relationship between them and M/s.Galileo / Amadeus India P Ltd., who developed Centralized Reservation System (CRS) softwares for booking air tickets. The petitioner contended that the software was merely used for booking air tickets developed by M/s.Galileo / Amadeus India P Ltd., and the incentives received should not be considered as provision of Business Auxiliary Service under the Finance Act, 1994. 2. The court noted that the petitioner had an alternative remedy before the Commissioner (Appeals) and questioned the admissibility of the writ petition. The court highlighted that the appeal should have been filed within 2 months before the Commissioner (Appeals) as per Section 85(3)(a) of the Finance Act, 1994, or with an application to condone the delay within 30 days thereafter. However, the petitioner chose to file the Writ Petition on 17th September 2013, beyond the statutory limitation period. The court emphasized the importance of following the prescribed appeal procedures and timelines. 3. Despite the delay in approaching the Court, the petitioner's reasons for the delay were considered genuine by the court. The court directed the petitioner to file a statutory appeal before the Appellate Commissioner within 30 days from the date of receipt of the order. If the petitioner complies with this direction, the 2nd respondent was instructed to consider the appeal and pass orders on merits in accordance with the law. The court disposed of the writ petition with these observations and directions, emphasizing no costs to be imposed and closing the connected miscellaneous petition.
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