2020 (12) TMI 702 - HC - Service Tax

Maintainability of petition - Petitioner did not prefer any appeal before the Appellate Authority, but has instead filed this Writ Petition challenging the order passed by the Respondent beyond the maximum limitation period of three months from the date of receipt of copy of that order - HELD THAT - The Hon'ble Supreme Court of India in ASSISTANT COMMISSIONER (CT) LTU, KAKINADA ORS. VERSUS M/S. GLAXO SMITH KLINE CONSUMER HEALTH CARE LIMITED 2020 (5) TMI 149 - SUPREME COURT has emphatically laid down that the High Court in the exercise of powers under Article 226 of the Constitution of India ought not to entertain Writ Petition assailing the order passed by a Statutory Authority which was not appealed against within the maximum period of limitation before the concerned Appellate Authority. It is not possible for this Court to express any view on the correctness or otherwise on the merits of the controversy involved in the matter - the Writ Petition, which cannot be entertained, is dismissed.

Summary

Issues:
1. Timeliness of filing appeal against the order determining liability for Service Tax under the Finance Act, 1994.
2. Entertaining a Writ Petition assailing an order not appealed against within the maximum limitation period before the Appellate Authority.

Analysis:
1. The Respondent passed an order determining the Petitioner's liability for Service Tax under the Finance Act, 1994, on 15.11.2017. The Petitioner received a copy of this order on 23.12.2017. The Petitioner had the right to appeal against this order under Section 85(3A) of the Act within two months of receipt. The Appellate Authority could condone a delay of up to one month if a sufficient cause for the delay was presented. However, the Petitioner did not file an appeal within this timeframe. Instead, the Petitioner filed a Writ Petition on 02.05.2018 challenging the order, which was beyond the maximum limitation period of three months from the date of receiving the order.

2. Referring to the legal position established by the Hon'ble Supreme Court of India in a specific case, it was emphasized that a High Court, under Article 226 of the Constitution of India, should not entertain a Writ Petition challenging an order by a Statutory Authority that was not appealed against within the prescribed limitation period before the Appellate Authority. In light of this legal principle, the Court stated it was not feasible to express any opinion on the merits of the case. Consequently, the Writ Petition was dismissed as it could not be entertained, and the connected Miscellaneous Petition was closed without any costs.

This judgment underscores the importance of adhering to statutory timelines for filing appeals against orders by Statutory Authorities and highlights the limitations of the High Court in entertaining Writ Petitions challenging such orders when not appealed against within the specified period.