2020 (2) TMI 221 - HC - Service Tax

Condonation of delay in filing appeal before Commissioner (Appeals) and filing petition before HC - Levy of service tax - erection, commissioning and installation service - HELD THAT - After the impugned order was passed on 29.12.2009, the petitioner should have filed an appeal before the appellate commissioner namely, the 2nd respondent within a period of 60 days or within a period of 30 days thereafter with an application for condoning the delay after explaining the reasons for the delay - Though, the preamble to the impugned order states that the appeal should have been filed within 90 days, as per the amendment to Section 35 of the Central Excise Act, 1944 in 2001, a statutory appeal should have been filed within 60 days of receipt of the impugned order. The present writ petition has been filed long after a lapse limitation on 26.04.2011. The petitioner cannot be allowed to approach the 2nd respondent Appellate Commissioner as the petitioner has been negligent in neither participating in the adjudicatory mechanism provided under the Act nor in not filing a statutory appeal in time. Even according to the petitioner, the impugned order was received on 4.01.2010. No steps were taken by the petitioner to file a statutory appeal or approach this Court within a time - petition dismissed.

Summary

Issues:
Challenge to impugned order confirming service tax liability for taxable services provided by petitioner between July 2008 to March 2009. Failure to file statutory appeal due to bereavement in the family. Petitioner's negligence in not participating in the adjudicatory mechanism and not filing a statutory appeal in time.

Analysis:
The petitioner challenged the impugned order dated 29.12.2009, where the 1st respondent confirmed a sum as service tax on taxable services provided between July 2008 to March 2009. The impugned order was based on a show cause notice issued on 10.09.2008, regarding taxable services under the category of erection, commissioning, and installation service. The petitioner contended that due to the demise of his wife on 01.07.2007, he could not file a statutory appeal, hence approaching the Court under Article 226 of the Constitution of India.

The Court noted that although the petitioner was issued a show cause notice in 2008, he failed to respond to it. It was observed that the petitioner's wife passed away in 2007, before the issuance of the show cause notice. The petitioner also did not file a reply to the notice. The Court highlighted that post the impugned order in 2009, the petitioner should have appealed to the 2nd respondent Appellate Commissioner within 60 days, or later with an application for condoning the delay. The Court emphasized that the petitioner did not take any steps to file a statutory appeal or approach the Court within the stipulated time frame.

The Court further mentioned that the petitioner's writ petition was filed long after the statutory limitation period had lapsed in 2011. Due to the petitioner's negligence in not participating in the adjudicatory mechanism and failing to file a statutory appeal in time, the Court held that there was no merit in the petition. Consequently, the writ petition was dismissed without costs, and connected miscellaneous petitions were closed. The Court's decision was based on the petitioner's failure to adhere to the statutory appeal timeline and participate in the legal process provided under the Act.