2021 (10) TMI 193 - HC - Service Tax

Court condones 815-day delay, directs appeal review. Petitioner instructed to pursue appeal.

The Court, utilizing its extraordinary power under Article 226, condoned the delay of 815 days in filing the appeal before the Appellate Authority. The ... Condonation of delay - statutory limitation for filing appeal under Section 85(3) of the Finance Act, 1984 - jurisdiction to condone delay by the Appellate Authority - extraordinary writ jurisdiction under Article 226 - entertainment of belated appeal in peculiar circumstances where prerequisite deposit was paid and appeal was mistakenly filed in wrong forum - pre requisite deposit for preferring an appealCondonation of delay - statutory limitation for filing appeal under Section 85(3) of the Finance Act, 1984 - jurisdiction to condone delay by the Appellate Authority - pre requisite deposit for preferring an appeal - entertainment of belated appeal in peculiar circumstances where prerequisite deposit was paid and appeal was mistakenly filed in wrong forum - extraordinary writ jurisdiction under Article 226 - Whether the Appellate Authority must be directed to entertain and decide on merits an appeal filed beyond the statutory limitation where the assessee paid the prerequisite deposit and initially filed the appeal before the wrong forum through inadvertence. - HELD THAT: - The Court examined the sequence of events: the order in original was served on the assessee; the assessee paid the prescribed 7.5% deposit within the limitation period and, due to inadvertence or staff error, filed the appeal before the original authority. The assessee thereafter filed a fresh appeal before the Appellate Authority after a delay of 815 days. While the Appellate Authority correctly observed that, under Section 85(3) of the Finance Act, it lacks power to condone delay beyond the prescribed period and therefore rejected the condonation petition, the High Court accepted the factual premise that the assessee had the intention to prefer an appeal within time (as evidenced by timely payment of the prerequisite deposit) and that the initial misfiling was an inadvertent error. Balancing the statutory limitation and the peculiar factual circumstances, the Court, exercising its extraordinary jurisdiction under Article 226, held that it was appropriate to direct the Appellate Authority to entertain the appeal and decide it on merits. The Court confined its intervention to directing entertainment and adjudication on merits and did not traverse or set aside the order in original itself.Direction issued to the Appellate Authority to entertain the belated appeal filed by the petitioner (filed after mistaken initial filing) and decide it on merits; the challenge to the order in original was not considered further.Final Conclusion: Writ petition disposed by directing the Appellate Authority to entertain and decide the petitioner's appeal on merits despite the delay, in view of the admitted timely payment of the prerequisite deposit and the peculiar factual circumstances; no costs. Issues:1. Delay in filing appeal before the Appellate Authority.2. Jurisdiction of the Appellate Authority to condone the delay.3. Request for Certiorarified Mandamus to quash the original order and appeal order.Analysis:1. The petitioner received a show cause notice for non-payment of service tax and other related charges. The Assessing Authority passed an order in original on 30.08.2018. The petitioner claimed to have filed an appeal but mistakenly sent it to the wrong authority, resulting in a delay of 815 days in filing the appeal before the Appellate Authority.2. The Appellate Authority rejected the appeal citing Section 85(3) of the Finance Act, which mandates a time limit for filing appeals related to service tax. The Appellate Authority held that it lacked the power to condone the delay of 815 days, leading to the petitioner filing a Writ Petition seeking to challenge the original order dated 30.08.2018.3. The petitioner argued that the delay was inadvertent and due to a mistake made by inexperienced staff. The petitioner contended that the appeal should be considered by the Appellate Authority despite the delay. The Respondent, standing counsel, maintained that the appeal was not filed within the statutory time limit and, therefore, should not be entertained due to the delay.4. The Court acknowledged that the petitioner had paid the required deposit promptly after receiving the original order, indicating an intention to appeal. Considering the circumstances and the petitioner's efforts to rectify the mistake by filing a fresh appeal, the Court exercised its extraordinary power under Article 226 of the Constitution of India to condone the delay and directed the Appellate Authority to entertain and decide the appeal on its merits.5. The Court disposed of the Writ Petition with a direction to the Appellate Authority to entertain the appeal filed by the petitioner against the original order dated 30.08.2018 and decide the appeal on its merits and in accordance with the law. The challenge against the original order in the Writ Petition was not pursued further, and the petitioner was instructed to request the Appellate Authority to proceed with the appeal based on the Court's order.