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2018 (7) TMI 1677 - HC - Service TaxCondonation of delay in filing appeal before Commissioner Appeals - Refund of amount paid by the petitioners - refund claimed on the ground that there was no authority to collect tax on the service rendered by the developer to the petitioners who are prospective buyers of Flats by construing the payment made as deposit - Circular issued by the Board in No. 108/02/2009 dated 29.01.2009 - refund was rejected on the ground of delay. Held that - Admittedly, in the present case, the delay was 4 months 4 days and the petitioners/appellants have explained the delay by filing the additional affidavits in pursuance of the remand order passed by this Court and explained the delay - Though the Deputy Commissioner was right in dismissing the appeals in view of Section 85 of the Finance Act, in view of dictum of Division Bench of this Court in the case of PRACTICE STRATEGIC COMMUNICATIONS INDIA P. LTD., v. C.S.T., DOMLUR 2017 (1) TMI 659 - KARNATAKA HIGH COURT , the matter was remanded to the Commissioner of Service Tax (Appeals) to decide the appeals on merits. This Court is bound to follow the judgment of the Division Bench of this Court. The matters are remanded to the Commissioner of Service Tax (Appeals) to decide the appeals on merits without reference to the limitation and pass orders strictly in accordance with law - petition allowed by way of remand.
Issues Involved:
1. Legality of the service tax imposed on the petitioners. 2. Justification for the rejection of the refund claim by the Deputy Commissioner of Service Tax. 3. Validity of the dismissal of appeals by the Commissioner of Central Excise (Appeals-II) on grounds of delay. 4. Authority of the Commissioner of Service Tax (Appeals) to condone delays beyond 90 days. 5. Application of the Division Bench judgment on condoning delays in similar cases. Detailed Analysis: 1. Legality of the Service Tax Imposed on the Petitioners: The petitioners, purchasers of flats constructed by a developer, were invoiced for service tax on the value of the flats. They later discovered, based on Circular No.108/02/2009 dated 29.01.2009 issued by the Central Board of Excise and Customs, that they were not liable to pay this service tax. Consequently, they sought a refund of the wrongly paid amount. 2. Justification for the Rejection of the Refund Claim by the Deputy Commissioner of Service Tax: The Deputy Commissioner of Service Tax rejected the refund applications by an order dated 23.09.2011, citing that the petitioners were not entitled to a refund. This decision was based on the interpretation of the applicable laws and the circular issued by the Board. 3. Validity of the Dismissal of Appeals by the Commissioner of Central Excise (Appeals-II) on Grounds of Delay: The petitioners' appeals to the Commissioner of Central Excise (Appeals-II) were dismissed as barred by limitation, with delays ranging from 2 months to 4 months 22 days. The petitioners challenged this decision, arguing that the delay was due to the need for additional legal advice and understanding of the legal processes. 4. Authority of the Commissioner of Service Tax (Appeals) to Condon Delays Beyond 90 Days: The Commissioner of Service Tax (Appeals) dismissed the appeals on the ground of delay, citing the provisions of Section 85 of the Finance Act, 1994, which limits the condonation of delay to 90 days. The Commissioner relied on the Supreme Court judgment in Singh Enterprises vs. CCE Jamshedpur, which upheld this limitation. 5. Application of the Division Bench Judgment on Condoning Delays in Similar Cases: The petitioners argued that the High Court has the authority to condone delays beyond statutory limits in the interest of substantial justice. They cited the Division Bench judgment in Practice Strategic Communications India P. Ltd. v. CST, Domlur, which allowed for such condonation under exceptional circumstances. This precedent was followed in subsequent cases, including M/S. Icon Hospitality Pvt. Ltd. vs. Union of India, where delays were condoned to ensure justice. Conclusion: The High Court, exercising its powers under Articles 226 and 227 of the Constitution of India, quashed the impugned order dated 18.04.2016 passed by the Commissioner of Service Tax (Appeals). The Court remanded the matters to the Commissioner of Service Tax (Appeals) to decide the appeals on merits without reference to the limitation, emphasizing the need for substantial justice over technicalities. The judgment highlights the judiciary's role in preventing injustice due to procedural delays and ensuring that the rights of the parties are upheld.
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