Statutory appeal preserved despite limitation dispute, with pre-deposit required and the delay question left for the Tribunal.

Where an efficacious statutory appeal was available, the writ court directed the assessee to pursue that remedy and preserved the right to contest limitation before the Tribunal. The court did not decide the delay dispute on merits; it left the question of timely filing open for the appellate forum. The assessee was permitted to file the appeal subject to the statutory pre-deposit requirement, thereby keeping the substantive appellate remedy alive while requiring compliance with the condition precedent.

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Issues: (i) Whether the assessee should be permitted to pursue the statutory appeal before the Tribunal despite the dismissal of the appeal as time barred by the Commissioner (Appeals).

Analysis: The dispute centred on the limitation applicable to the appeal before the Commissioner (Appeals) under the Finance Act, 1994, and whether the writ court should grant relief when the assessee sought to contend that the appeal had been filed within time. The Court noted the rival positions on receipt of the order and the statutory restriction on condonation beyond the prescribed period, but did not adjudicate the limitation dispute on merits. Instead, it considered it appropriate to preserve the assessee's right to pursue the appellate remedy under Section 86 of the Finance Act, 1994, subject to a pre-deposit, while leaving the assessee free to establish the plea of timely filing before the Tribunal.

Conclusion: The assessee was permitted to file an appeal before the Tribunal within the stipulated time on deposit of 10% of the service tax demanded, and the question of delay was left open for decision by the Tribunal.

Final Conclusion: The writ proceedings were disposed of by directing the parties to the statutory appellate forum, with the assessee given an opportunity to establish the limitation plea before the Tribunal.

Ratio Decidendi: Where an efficacious statutory appeal is available, the writ court may direct recourse to that remedy and preserve the appellant's right to agitate limitation before the appellate forum, subject to compliance with the statutory pre-deposit requirement.

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