2015 (5) TMI 565 - HC - Service Tax

Maintainability of appeal - After availing the remedy unsuccessfully before another Court whether Court can accept the challenge to the self same order, which has reached its finality under writ jurisdiction or not - Held that - it is not legally permissible, if it is done the writ court will unsettle a legally settled position. We think that when appellate authority has already decided the matter against the petitioner, the writ Court is debarred from doing so as the same binds the writ Court applying the principle of res judicata, particularly, when the appellate authoritys orders are not challenged in the writ jurisdiction - Decided against assessee.

Summary

Issues:
1. Validity of levying Service Tax on works undertaken by the petitioner.
2. Applicability of Section 35(1) of the Act regarding appeals to Commissioner (Appeals).
3. Interpretation of the judgment in Singh Enterprises vs. Commissioner of Central Excise, Jamshedpur.
4. Permissibility of maintaining a writ petition after unsuccessfully availing an alternative remedy before an appellate authority.
5. Application of the principle of res judicata in writ jurisdiction.

Analysis:
1. The petitioner filed a writ petition challenging the 1st respondent's action of levying Service Tax on works undertaken as illegal and arbitrary. The court noted that the petitioner's appeal to appellate authorities was presented beyond the prescribed limitation period and condonable period. Referring to a previous judgment, the court emphasized the rigidity of Section 35(1) of the Act, which restricts the extension of appeal timelines. The court held that once the prescribed period expires, the remedy is barred, and no court can entertain the matter, even with the application of Section 5 of the Limitation Act, 1963.

2. The judgment in Singh Enterprises vs. Commissioner of Central Excise, Jamshedpur was cited, highlighting that the appellate authority has the power to condone delay only up to 30 days beyond the initial 60-day appeal period. The court emphasized the exclusion of Section 5 of the Limitation Act in such cases, affirming that the appellate authority cannot entertain appeals presented beyond the specified timeline. This interpretation guided the court's decision regarding the limitations of appeal timelines and condonation of delays.

3. The court addressed the argument that attempting to prefer an appeal unsuccessfully before the appellate authority does not preclude the petitioner from maintaining a writ petition. However, the court differentiated this scenario from the case cited, emphasizing that the legal question at hand was distinct. The court concluded that challenging a legally settled position after an unsuccessful remedy before another court is not permissible, as it would unsettle the finality of decisions and violate the principle of res judicata.

4. Ultimately, the court deemed the writ petition not maintainable, citing the binding nature of appellate authority decisions and the application of the principle of res judicata in writ jurisdiction. The court rejected the contention that the writ court could challenge an order that had reached finality through an unsuccessful alternative remedy. Consequently, the writ petition was dismissed, and pending applications were closed without any costs awarded.