2018 (11) TMI 760 - HC - Service Tax

Court grants relief to Cooperative society, allows appeal despite delay, emphasizes non-precedent decision

The court allowed the writ petition, setting aside the order dismissing the appeal as time-barred for a Cooperative society. The court condoned the delay ... Condonation of delay - jurisdiction to condone delay - writ jurisdiction to prevent prejudice - application of precedent in analogous appealsCondonation of delay - jurisdiction to condone delay - writ jurisdiction to prevent prejudice - application of precedent in analogous appeals - Whether the writ petition should be allowed to set aside the appellate order dismissing the appeal as time barred and to direct admission and merits adjudication of the appeal notwithstanding the delay. - HELD THAT: - The Court noted that the appeal was presented beyond the prescribed period and that the Commissioner of GST and Central Excise (Appeals) lacks jurisdiction to condone the delay. Having observed that identical issues had been decided in favour of other co operative societies by the Commissioner of Central Excise (Appeals), Salem, by order dated 8 10 2014 in Appeal Nos. 199 to 203 & 206/2014 ST, the Court held that the petitioner should not be non suited on a technical ground and that the society's interest ought not to be prejudiced. In exercise of writ jurisdiction the Court set aside the impugned order dismissing the appeal as barred by limitation, condoned the delay in filing the appeal, and directed the appellate authority to admit and decide the appeal on merits, taking note of the earlier appellate order which was stated to cover the petitioner. The Court expressly clarified that its order should not be treated as a precedent by others. [Paras 3, 4, 5]Writ petition allowed; impugned order set aside, delay condoned, and the second respondent directed to take the appeal on record and decide it on merits while bearing in mind the order dated 8 10 2014; no costs.Final Conclusion: The writ petition was allowed to prevent prejudice to the co operative society: the delay in filing the appeal was condoned and the appellate authority was directed to admit and decide the appeal on merits, with reference to the earlier appellate order stated to be in the petitioner's favour; the Court cautioned that the order is not a precedent for others. Issues:Challenge to order passed by second respondent dismissing appeal on grounds of limitation.Analysis:The petitioner, a Cooperative society, challenged an order dismissing their appeal as time-barred. The court noted the appeal was indeed filed beyond the prescribed period, and the Commissioner had no authority to condone the delay. However, the petitioner argued that similar societies had received favorable decisions in the past. Despite the jurisdictional limitations, the court decided to consider relief for the petitioner due to the unique circumstances. The court directed the first respondent not to take coercive action for tax recovery and scheduled further proceedings.The respondents acknowledged that other Cooperative Societies had succeeded in similar appeals in the past. The court, recognizing the potential prejudice to the petitioner, emphasized that its decision should not set a precedent. Consequently, the court allowed the writ petition, set aside the impugned order, condoned the delay in filing the appeal, and instructed the second respondent to consider the appeal on its merits. The court also instructed the second respondent to consider the previous order favoring other societies, extending the benefit to the petitioner without imposing any costs.