2018 (9) TMI 1215 - HC - Service Tax

Rectification of Order - Section 74 of the Act - main ground on which Ext.P5 order is attacked is that since the petitioner sought rectification in respect of Ext.P1 order, the same should have been considered by the second respondent, the original authority and not the first respondent - Held that - In so far as the appeal preferred by the petitioner is dismissed for non payment of pre-deposit, there is no merger as pointed out by the learned Standing Counsel and that therefore, Ext.P4 application should have been considered by the original authority namely, the second respondent - petition allowed.

Summary

Issues:
1. Challenge to Ext.P5 order rejecting rectification application under Section 74 of the Finance Act, 1994.
2. Jurisdictional issue regarding consideration of rectification application by the first respondent instead of the original authority, the second respondent.

Analysis:

Issue 1: Challenge to Ext.P5 order
The petitioner challenged the Ext.P5 order, which rejected the rectification application filed under Section 74 of the Finance Act, 1994. The petitioner had initially suffered an order (Ext.P1) for payment of service tax, which was appealed against. However, the appeal was dismissed by the Appellate Authority due to non-payment of pre-deposit, resulting in the Ext.P3 order. Subsequently, the petitioner filed an application (Ext.P4) for rectification of the original Ext.P1 order. The first respondent rejected this application through the Ext.P5 order, leading to the current writ petition challenging the same.

Issue 2: Jurisdictional Concern
The primary contention raised against the Ext.P5 order was that the rectification application concerning the Ext.P1 order should have been considered by the second respondent, the original authority, rather than the first respondent. The learned Standing Counsel for the respondents argued that the Ext.P5 order was passed by the first respondent because Ext.P1 order had merged with the Ext.P3 order issued by the Appellate Authority. However, it was highlighted that since the appeal was dismissed for non-payment of pre-deposit, there was no merger. Consequently, the Ext.P4 rectification application should have been evaluated by the second respondent, the original authority.

In conclusion, the High Court allowed the writ petition, setting aside the Ext.P5 order and directing the second respondent to review and make a decision on the Ext.P4 rectification application submitted by the petitioner. This judgment clarifies the jurisdictional aspect of considering rectification applications under the Finance Act, emphasizing the importance of proper authority review in such matters.