AISWARYA ASSOCIATES Vs. UNION OF INDIA AND OTHERS

JUDGEMENT

(1.) When W. P. (C) No. 35318 of 2008 was taken up for hearing, W. P. (C) No. 37168 of 2009, though not listed today, on agreement between the parties, was called up, since the question raised in both the writ petitions is one and the same. For the purpose of appreciation of question of law arising for consideration, it will be sufficient to refer to the facts relating to W. P. (C) No. 35318 of 2008.

(2.) The petitioner is a partnership firm, registered as a service provider. The petitioner submits that the petitioner has been providing clearing and forwarding agent's service to Abbot India Ltd., in terms of specific agreement between the parties. Exhibit P1 produced for identification. Exhibit P2 is another agreement. According to the petitioner, service tax is not payable on the reimbursed amount and the service tax on the entire commission was paid by the petitioner. The authorities did not accept this contention and exhibit P3 show-cause notice was issued as to why the alleged difference in service tax should not be demanded from him. The petitioner submitted exhibit P4 reply. The adjudicating authority rejected the contention in exhibit P4 and confirmed the demand. The petitioner was also imposed a penalty under section 78 of the Finance Act, 1994. Separate penalty under section 76 of the Finance Act was also imposed. A copy of the order is produced as exhibit P5. The order was received at the office of the petitioner on April 24, 2008. Though the petitioner is entitled to prefer a statutory appeal against the said order before the third respondent within three months, as prescribed under section 85 of the Finance Act, he did not invoke the appellate remedy within time. Obviously, for the reason that power to condone the delay by the appellate authority is limited for a period of three months which also expired on October 24, 2008. Since the petitioner could not file a statutory appeal, the petitioner has approached this Court by filing this writ petition

(3.) According to the petitioner, the person in charge of the affairs and dealing with the tax matters had left the service without intimating the fact of receipt of exhibit P5. Only later when the petitioner was served with notice dated November 3, 2008, which was received on November 7, 2008, he came to know about exhibit P5 order.