9911796707
TMI Blog2021 (10) TMI 193X X X X Extracts X X X X X X X X Extracts X X X X ..... les, 2004 - HELD THAT:- Admittedly, the order in original was passed on 30.08.2018, of course, after giving due opportunity to the petitioner, which the petitioner cannot deny. On receipt of the order in original on 04.09.2018, prerequisite deposit of 7.5% of demanded tax was paid by the petitioner on 20.09.2018, that is, within 15 days, based on which, it is claimed by the petitioner that, the appeal papers have been prepared and sent, instead of Appellate Authority, it was sent to the Original Authority, that is, the Assessing Authority. If at all the petitioner had no intention to prefer an appeal within the time prescribed, in this regard, he would not have come forward to make pre-requisite deposit of 7.5% of demanded tax and this has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ORDER The Prayer sought for in this Writ Petition is for Certiorarified Mandamus, to call for the files relating to Order-in-Original No.MAD-ST-000- ASC-031/18 dated 30.08.2018 of the first respondent and quash the same and the related Order-in-appeal No.19/2021 dated 10.03.2021 for the second respondent with direction to the first respondent to re-adjudicate the SCN No.9/2017 (S.TAX) dated 27.07.2017 after receiving reply and providing opportunity of hearing to the petitioner. 2.The petitioner is an assessee under the first respondent and in respect of service tax, a show cause notice was issued on 27.07.2017, on the ground that there has been non-payment of service tax to the tune of ₹ 2,98,973/- on legal charges paid to adv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inst the said order in original, since there has been a pre-requisite of deposit of 7.5% of the tax demand, for preferring an appeal to the Appellate Authority, that amount also was paid by the petitioner on 20.09.2018 and thereafter, according to the petitioner, the appeal papers have been sent, instead of to the Appellate Authority, to the Original Authority itself. Subsequently, no further movement has been taken place, and after a long time, the petitioner had came to know that the appeal filed by the petitioner had been before the Original Authority, which is the wrong Forum, therefore, in this regard, though some communications had been given, or request had been made to the Appellate Authority, since the same was not considered, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2018 and thereafter, appeal was prepared and filed before the Original Authority wrongly, due to some inexperienced staff of the petitioner/assessee at that time, as the very business of the petitioner had completely come down. The mistake is an inadvertent one occurred at the end of the assessee side, and therefore, if at all, the said appeal has been filed in a wrong Forum, the same can very well be returned to the assessee, enabling the assessee to file an appeal before the Appellete Authority/proper Forum. However, the said issue had come to the light only long after and when they prepared a fresh appeal and file it before the Appellate Authority, there has been a delay of 815 days, therefore, in order to condone such a delay, when a re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hority with the delay of 815 days. Hence, it has become clear that, whatsoever the appeal filed by the petitioner/assessee, it must be within the time of limitation, as per section 85(3) of the Act and therefore, if there is no such appeal filed, belated appeal with huge delay cannot be accepted, therefore, the Appellate Authority has rightly rejected the same. 8.I have considered the rival submissions made by the learned counsel appearing for the petitioner and the learned Standing Counsel appearing for the respondents and perused the materials placed before this Court. 9.In this case, admittedly, the order in original was passed on 30.08.2018, of course, after giving due opportunity to the petitioner, which the petitioner cannot den ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reasons at the end of the assessee side. In view of the said factual circumstances, this Court feel that in such peculiar circumstances, the appeal filed by the petitioner can be entertained by the Appellate Authority. This Court by exercising its extraordinary power under Article 226 of the Constitution of India, can very well condone the delay in filing the appeal before the Appellate Authority for the very peculiar reasons as discussed above. 11.In view of the aforesaid facts and circumstances, this Court is inclined to dispose of the Writ Petition with the following orders. 12. That there shall be a direction to the second respondent/Appellate Authority, to entertain the appeal filed by the petitioner as against the order-in-origi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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