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TMI Blog2014 (12) TMI 866X X X X Extracts X X X X X X X X Extracts X X X X ..... order dated 30.1.2014 alongwith the orders dated 11.6.2013, 10.10.2013 and 22.5.2008. Facts of the case. 3. Briefly stated the facts of the present case are that the petitioner is a service provider as Rent-a-cab-operator. He applied for registration under the Finance (No. 2) Act of 1994 (hereinafter referred to as the Act) with the Deputy Commissioner, Central Excise and Service Tax Division-I, Allahabad i.e. respondent no. 2 who issued a registration certificate allotting STC No. "AAEFV4956GST001" vide order dated 4.4.2006 showing address of the petitioner as "Chak Chhatnag Road, Jhunsi, Allahabad". An assessment order dated 16.3.2010 for the period from September, 2000 to September, 2005, October 2005 to March 2006, April 2006 to March 2007 and May 2008 to July 2008 was passed by the jurisdictional assessing authority i.e. respondent no. 2. The petitioner filed an appeal before the Commissioner (Appeal), which was dismissed vide order dated 31.3.2011 due to non-compliance of the condition of pre-deposit. 4. Aggrieved with this order the petitioner filed an appeal before the Customs Excise and Service Tax Appellate, New Delhi, who set aside the orders and remanded the matter t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... btained certified copy of demand-cum-show cause notice issued by respondent no. 3 and the order in original dated 22.5.2008, in order to file appeal before the Commissioner (Appeal). The appeal No. 259 of 2013 filed by the petitioner was rejected by the respondent no. 1 on the ground of delay vide order dated 30.1.2014. 10. In paragraph 37 of the writ petition the petitioner has stated as under:- "That being aggrieved by the order dated 30.1.2014 the petitioner had preferred a writ petition no. 160 of 2014 but the Court was of the view that since the SCNs/ order in original issued by the office Deputy Commissioner Central Excise Division-I, Allahabad has not attained finality, therefore, it would be appropriate that the same may be decided earlier and a direction was given to decide the pending adjudication, after the remand order dated 25.1.2012 within one month after giving opportunities to all concerned parties, vide order dated 12.3.2014." 11. The afore-quoted paragraph 37 of the writ petition has been replied in paragraph 31 of the counter affidavit of respondent no. 3 dated 3.9.2014 as under:- "That the contents of paragraph 37 and 38 needs no comments as the same pertain ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rticle 14 of the Constitution of India. He submits that the entire payments of the petitioner due from respondent no. 4 was withheld at the instance of respondent no. 3 in consequence to the impugned attachment orders which are wholly null and void. He made number of other submissions on several occasions which were noted in the orders passed by this Court on different dates. He therefore, submits that the impugned orders may be set aside and the writ petition may be allowed with heavy costs for causing harassment to the petitioner and depriving him the enjoyment of his lawful money. He relied upon the judgment of Hon'ble Supreme Court in the case of Balvant N. Viswamistra and others Vs. Yadav Sadashiv Mule (dead) Through LRS (2004) 8 SCC 706- para 9 and 15, F India and Anothr Vs. Association of Unified Telecom Service Providers of India and Others (2011) 10 SCC 543- Para 59, 60 and 61, N.Nagendra Rao and Company Vs. State of Andra Pradesh 1994 (6) SCC 205 para 8,9,13 to 20, 25 and 29, Lucknow Development Authority Vs. M.K. Gupta, AIR 1994 SC 787 para 8 and 11 and the Division Bench of this Court in the case of Ram Singh and others Vs. State of U.P. and others 2000 UPTC 865 Par ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m has attained finality inasmuch as it was not challenged in appeal by the petitioner. According to the petitioner he was having no knowledge of the aforesaid ex-parte order in original dated 22.5.2008 and came to know about it when respondent no. 3 sent him recovery letter dated 11.6.2013 followed by notice dated 13.9.2013. Thereafter he preferred appeal no. 259 of 2013 before the respondent no. 1 appellate authority which was rejected on the ground of delay vide order dated 30.1.2014. In the aforesaid order the Appellate Authority also observed as under:- "But, before summing up and without going into the merit of the case, I would like to mention that as pointed out by the appellant in the grounds of appeal above and documents enclosed with appeal memo that the appellant is carrying out his business in the name "Vandana Travels & Tours", having its registered office at Chak Chhatnag Road, Jhunsi, Allahabad of "Rent-a-cab-operator' service and is registered with the Office of Deputy Commissioner Central Excise Division-I, Allahabad for the purpose of payment of service tax and has been allotted STC Number AAEFV4956GST001. It also appears that the appellant has received paral ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... id orders cannot be withdrawn and is liable to be recovered from the petitioner. 21. In my opinion the stand taken by the respondents is not only wholly misconceived but also unfair. Section 66 is charging section which provides for levy of tax on the value of taxable service rendered by a person to another. Section 67 provides for valuation of taxable service. Section 68 provides that every person providing taxable service shall pay service tax at the prescribed rates and in the manner prescribed. Neither the Act nor the rules provides for any double assessment nor it can be permitted in view of the fact that the transaction in question have been assessed by the jurisdictional authority. Article 265 of the Constitution of India provides that no tax shall be levied or collected except by authority of law. Thus the order dated 22.5.2008 passed by the respondent no. 3 was a complete nullity and therefore, the demand created thereunder was not legally recoverable from the petitioner. 22. The respondent no. 3 lacked inherent jurisdiction to pass the impugned order dated 22.5.2008 as well as consequential recovery proceedings by order dated 13.9.2013 by respondent no. 3 for recovery o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o. A defect of jurisdiction of the court goes to the root of the matter and strikes at the very authority of the court to pass a decree or make an order. Such defect has always been treated as basic and fundamental and a decree or order passed by a court or an authority having no jurisdiction is nullity. Validity of such decree or order can be challenged at any stage, even in execution or collateral proceedings. 10. Five decades ago, in Kiran Singh & Ors. v. Chaman Paswan & Ors., [1955] l SCR 117 this Court declared; "It is a fundamental principle well established that a decree passed by a court without jurisdiction is a nullity and that its invalidity could be set up wherever and whenever it is sought to be enforced or relied upon, even at the stage of execution and even in collateral proceedings. A defect of jurisdiction......strikes at the very authority of the Court to pass any decree and such a defect cannot be cured even by consent of parties. " 11.The said principle was reiterated by this Court in Seth Hiralal Patni v. Sri Kali Nath, [1962] 2 SCR 747. The Court said: "Competence of a court to try a case goes to the very root of the jurisdiction, and where it is lacking, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ature of the larger Bench decision in Anwar Ali Sarkar's case (supra) which was not adverted to by this Court. The basic fundamentals of the administration of justice are simple. No man should suffer because of the mistake of the Court. No man should suffer a wrong by technical procedure of irregularities. Rules or procedures are the hand-maids of justice and not the mistress of the justice. Ex debite justitiae, we must do justice to him. If a man has been wronged so long as it lies within the human machinery of administration of justice that wrong must be remedied. This is a peculiar fact of this case which requires emphasis. 27. In the case of Union of India vs. Association of Unified Telecom Service Providers of India (2011) 10 SCC 543 Hon'ble Supreme Court referred its judgement in the case of Chandrabhai K. Bhoir Vs. Krishna Arjun Bhoir (2009) 2 SCC 315 and observed in para 59, 60 and 61 as under:- 59. Thus, the Tribunal in its order dated 7.7.2006 has not just decided a dispute on the interpretation of adjusted gross revenue in the licence agreement, but has decided on the validity of the definition of adjusted gross revenue in the licence agreement. As we have alre ..... X X X X Extracts X X X X X X X X Extracts X X X X
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