2024 (10) TMI 1397 - HC - Central Excise

Recovery of short paid service tax - time limitation - appeal has been preferred beyond the period of 1325 days - HELD THAT - It is not in dispute that after service of the impugned order dated 31.03.2017, the appeal should have been preferred within limitation, but the appeal has been preferred beyond the period of 1325 days. Admittedly, the impugned order dated 31.03.2017 was received by the petitioner. The appeal has been preferred on 13.01.2021 beyond the period of 1325 days. This Court, under extra ordinary jurisdiction, cannot interfere with the impugned orders as the application of limitation does not apply to section 35 Central Excise Act. The Apex Court, after considering the judgement of ITC Limited 1990 (8) TMI 173 - SUPREME COURT , in the case of Singh Enterprises 2007 (12) TMI 11 - SUPREME COURT has specifically held ' Commissioner and the High Court were therefore justified in holding that there was no power to condone the delay after the expiry of 30 days' period.' Thus, it has been held that the delay cannot be condoned beyond the period what is prescribed under the respective Act as the language of the section specifically provides for condonation of delay of additional period mentioned therein only. Further, since the petitioner has equally, efficacious alternative remedy of filing an appeal under section 35-G of the Central Excise Act before the Division Bench of this Court, writ petition before the Single Judge is not maintainable. Petition dismissed.

Summary

Issues Involved:

1. Quashing of impugned orders.
2. Refund of deposit amount and service tax.
3. Non-coercive action against the petitioner.
4. Condonation of delay in filing the appeal.
5. Availability of an alternative remedy.

Issue-wise Detailed Analysis:

1. Quashing of Impugned Orders:

The petitioner sought the quashing of three impugned orders dated 31.03.2017, 30.04.2021, and 28.02.2022. The petitioner argued that the proceedings against them for the payment of service tax were wrongly initiated, as per the agreement with the U.P. Power Corporation Limited, the service tax was to be paid by the department to the petitioner. Despite this, the orders confirmed the demand for service tax, which the petitioner contested.

2. Refund of Deposit Amount and Service Tax:

The petitioner requested a refund of the total deposit amount of Rs. 22,333,836/- and service tax along with interest and penalty from the financial years 2011-12 to 2014-15. The petitioner claimed that the amount was recovered under the impugned order dated 31.03.2017 and sought interest from the date the amount was deposited/recovered until the finalization of the case.

3. Non-Coercive Action Against the Petitioner:

The petitioner requested a directive to prevent any coercive action against them in pursuance of the impugned orders. This was sought to protect the petitioner firm from any adverse actions while the legal proceedings were ongoing.

4. Condonation of Delay in Filing the Appeal:

The petitioner argued for the condonation of the delay in filing the appeal due to the resignation of one partner and the incarceration of the remaining partner, Shri Arun Kumar Sharma. The appeal was filed beyond the period of limitation, and the petitioner contended that there was sufficient cause to condone the delay. However, the court found that the appeal was preferred 1325 days late, and the statutory provisions did not allow for condonation beyond the prescribed period.

5. Availability of an Alternative Remedy:

The respondent argued that the petitioner had an equally efficacious alternative remedy of filing an appeal under section 35-J of the Central Excise Act. The court emphasized that when an alternative remedy is available, the writ petition is not maintainable. The court cited various precedents, including the Supreme Court's rulings, to support the position that the High Court should not entertain a writ petition when an alternative remedy exists.

Conclusion:

The court concluded that the delay in filing the appeal could not be condoned beyond the statutory period. The petitioner had an alternative remedy available, and thus, the writ petition was not maintainable. The court dismissed the writ petition, stating that no interference was warranted in the impugned orders. The legal principles regarding the limitation period and the availability of alternative remedies were reaffirmed, emphasizing the legislative intent behind such statutory provisions.