PANOPHARAM AND NARAYANEEYAM Vs. UNION OF INDIA (UOI)

JUDGEMENT

(1.) When W.P.(C) No. 35318 of 2008 were 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.

(2.) 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. 35318/2008.

(3.) 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. Ext.P1 produced for identification. Ext.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 Ext.P3 show cause notice was issued as to why the alleged difference in service tax should not be demanded from him. The Petitioner submitted Ext.P4 reply. The adjudicating authority rejected the contention in Ext.P4 and confirmed the demand. The Petitioner was also imposed a penalty under 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 Ext.P5. The order was received at the office of the Petitioner on 24-4-2008. Though the Petitioner is entitled to prefer a statutory appeal against the said order before the 3rd 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 24-10-2008. Since the Petitioner could not file a statutory appeal, the Petitioner has approached this Court by filing this writ petition.