2022 (12) TMI 96 - HC - Service Tax

Maintainability of petition - availability of alternative remedy of appeal - time limitation - HELD THAT - The Petitioner has not placed on record any material as to the date of receipt of order dated 16th December, 2021. In view of aforesaid sub-section (3A) of Section 85, the Petitioner was required to file Appeal within two months i.e., on or before 15 th February, 2021 and the condonable period was one month thereafter which lapsed on 15th March, 2021. This Court is not inclined to exercise the extraordinary jurisdiction vested under Article 226 of the Constitution of India. Hence, the writ petition is liable to be dismissed.

Summary

Issues:
Challenge to Order-in-Original under Sections 73, 75 & 78 of Finance Act, 1994; Failure to avail alternative remedy of Appeal under Section 85; Extension of limitation period due to Covid-19 pandemic; Filing of writ petition beyond extended limitation period.

Analysis:
1. The petitioner challenged Order-in-Original No.31/ACCE/ST/SBP-1/2021 under Sections 73, 75 & 78 of the Finance Act, 1994, dated 16th December, 2021, before the High Court invoking Article 226/227 of the Constitution of India.

2. The petitioner contended that despite transactions being covered by the Mega Exemption Notification, relief was not granted, and the order was nullified due to being beyond the limitation period. The petitioner bypassed the appeal remedy under Section 85 of the Finance Act.

3. The Junior Standing Counsel argued that the writ petition was not maintainable as the appeal remedy under Section 85 was not utilized within the specified period.

4. The Court noted that the petitioner failed to file an appeal within the prescribed time under Section 85, which required filing within two months from the date of the order, with a further condonable period of one month.

5. Considering the Covid-19 pandemic situation, the Supreme Court extended the limitation period till 28-2-2022, with a 90-day grace period from 1-3-2022 for cases where the limitation would have expired during the extended period.

6. The petitioner was required to file the writ petition by 29th May, 2022, as per the extended limitation period. However, the petition was filed on 30th June, 2022, beyond the granted period, leading the Court to dismiss the petition.

7. Referring to precedents, the Court emphasized that the existence of an alternative remedy does not preclude the Court from interference if the order's unconstitutionality or illegality is evident. However, parties cannot bypass the law of limitation by approaching the Court after the prescribed period for seeking relief from appellate authorities.

8. Consequently, the Court declined to exercise its jurisdiction under Article 226 and dismissed the writ petition due to being filed beyond the extended limitation period set by the Supreme Court.

By following the above analysis, the Court dismissed the writ petition due to being filed beyond the extended limitation period granted by the Supreme Court in light of the Covid-19 pandemic, emphasizing the importance of adhering to statutory timelines and exhausting available legal remedies.