TaxTMI 
TaxTMI 
2018 (7) TMI 1677
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....purchasers of flats which were constructed by the developer. The developer has raised the invoices on the petitioners to pay the service tax on the value of the flats constructed. The petitioners have paid the service tax on the invoices raised by the developer including the service tax. It is further contended that the petitioners later came to know that they were not required to pay the service tax under law on the construction undertaken by the builder/developer as per the Circular issued by the Central Board of Excise and Customs (hereinafter referred to as 'Board' for short) in No.108/02/2009 dated 29.01.2009. Therefore, the petitioners have preferred applications before the 2nd respondent-Assistant Commissioner of Service Tax against the wrong payment of tax which the department has no authority to collect as per the provisions of the Act and also as per the circular issued by the Board on 02.12.2010 as per Annexures-B to B4. The invoices dated 29.10.2010 raised by the developer are hereby produced as per Annexures-H to H4. 3. In pursuance of the applications made, the Deputy Commissioner of Service Tax initiated proceedings after issuing notice to the authorities and afte....
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....e same and the same has not been done. He would further contend that the Commissioner of Service Tax (Appeals) while rejecting the present appeals on the ground of delay and laches has ignored the direction issued by this Court in W.P.Nos.40599-658/12 and connected matters directing the Appellate Authority to extend reasonable opportunity of being heard and permitting the petitioners to file additional affidavits over sufficient cause for the delay. Therefore, he submits that the rights of the parties cannot be deprived of on technicality. 9. In support of his contention, he relied upon the judgment of this Court in the case of M/S.ICON HOSPITALITY PVT LTD., VS. UNION OF INDIA made in W.P.NO.17296/2018 dated 06.06.2018, wherein this Court condoned the delay of 152 days in filing the appeal and directed the Appellate Authority to decide the appeal on merits without reference to the limitation and therefore, relying upon the said judgment, he sought for allowing the present Writ Petitions by quashing the impugned order passed by the Commissioner of Service Tax (Appeals). 10. Per contra, Sri.Jeevan J.Neeralgi, learned Standing Counsel appearing for the respondents sought to just....
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....tioners and others filed W.P.Nos.40599-658/2012 and connected matters before this Court, this Court quashed the order passed by the Commissioner of Service Tax (Appeals) and remanded the matters to the Commissioner of Service Tax (Appeals) to consider afresh permitting the petitioners to file additional affidavits to show the sufficient cause. Even after remand order from this Court, the Commissioner of Service Tax (Appeals) by the impugned order dated 18.04.2016 dismissed the appeals only on the ground of delay and laches on the ground that he cannot exercise beyond powers conferred under the provisions of Sections 85 of the Finance Act. 14. It is not in dispute that after remand the petitioners have filed additional affidavits to condone the delay in filing appeals and specifically stated that they had to seek more legal advice and also required more time to take a decision to understand the legal processes and the pros and cons of filing an appeal, which had caused the delay in filing the appeal, which is beyond their control. Therefore, the cause shown by the appellants/petitioners to condone the delay in filing the appeals are for different period of delay. The consultant a....
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....ccount of its power to legalise injustice on technical grounds but because it is capable of removing injustice and is expected to do so. 16. The Division Bench of this Court in similar circumstances where there was a delay in preferring the appeals before Commissioner of Service Tax in the case of PRACTICE STRATEGIC COMMUNICATIONS INDIA P. LTD., v. C.S.T., DOMLUR reported in 2016(45) S.T.R. 47 (Kar.) at paragraph No.11, it has been held as under:- "11. In view of the above referred decision of this Court, if this Court finds that the authority has passed the order without jurisdiction or has exercised the power in excess of the jurisdiction or by over-stepping or crossing the limit of jurisdiction or that there is failure of justice, or it has resulted in gross injustice, it would be a case falling under the exceptional category for exercising the power under Article 226 of the Constitution and to interfere with the order of the original authority or the appellate authority, as the case may be. In order to find out as to whether the case is fit for exercising of the power under Article 226 of the Constitution, we may record that as per the decision of the Delhi High Court, Ru....