2021 (5) TMI 972 - HC - Service Tax

Maintainability of appeal - appropriate Forum - Refund of the amount already remitted - Allegation is that mandatory formalities such as issuing notice were not complied with - Questions of facts involved - HELD THAT - Since factual aspects are involved, the petitioner can as well avail the alternative remedy of appeal. Taking note of the facts and circumstances of the case, if the appeal is filed before the appellate authority within a period of three weeks from the date of receipt of a copy of this order, the appellate authority will entertain the same without reference to limitation. Petition dismissed.

Summary

Issues:
1. Non-compliance with mandatory formalities in tax and penalty collection.
2. Right to Information Act application for obtaining the impugned order.
3. Seeking refund of the tax and penalty amount paid.
4. Availability of alternative remedy of appeal.

Analysis:
1. The petitioner claimed that they transported teak logs with proper documentation but had only a photocopy of the invoice with the driver, leading to a demand for tax and penalty by the second respondent. The petitioner argued that mandatory formalities, such as issuing a notice, were not followed, and the tax and penalty collection was deemed illegal. The petitioner sought a refund of the amount paid, contending that the impugned order was obtained under the Right to Information Act.

2. The judge noted that the petitioner's case involved factual aspects and suggested that the petitioner could pursue an alternative remedy by filing an appeal. The judge did not delve into the merits of the matter but directed the petitioner to file an appeal before the appellate authority within three weeks from the date of receiving the order. The appellate authority was instructed to entertain the appeal without considering the limitation period. The judge emphasized that all contentions of the petitioner were left open, and the writ petition was disposed of with liberty to appeal, without imposing any costs.

3. The judgment highlights the importance of following proper procedures in tax and penalty collection, emphasizing the availability of an appeal as an alternative remedy for addressing grievances related to such matters. The judge's decision to allow the petitioner to pursue an appeal signifies a balanced approach to resolving the dispute while upholding the principles of natural justice and procedural fairness. By not delving into the merits of the case and leaving all contentions open for further review, the judgment ensures that the petitioner has an opportunity to seek redress through the appropriate legal channels.

4. Overall, the judgment underscores the significance of adhering to legal procedures and providing avenues for recourse in cases involving tax and penalty disputes. It exemplifies a judicial stance that prioritizes procedural correctness and access to justice, ultimately aiming to uphold the rule of law and protect the rights of individuals involved in such legal conflicts.