By Puloma Dalal, Jayesh Gogri, Mandar Telang Chartered Accountants
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Where the appeals against the Order-in -Original are dismissed by First and Second Appellate Authorities as time-barred, the writ Courts cannot accept a challenge to the very same order, as it would unsettle a legally settled position.
Facts: The petitioner filed an appeal before first and second appellate authority, but both the authorities refused to entertain the same as they were presented not only beyond the period of limitation prescribed therefor, but also beyond the condonable period. Therefore, a writ petition was filed before High Court asking for a writ of mandamus declaring the levy of service tax on the works undertaken by the petitioner as illegal, arbitrary, amounting to double taxation and consequently setting aside the original order.
Held:
Relying upon decision dated 29.01.2015 in the case of M/s. Resolute Electronics (P.) Ltd. vs. Union of India Writ Petition No. 1409 of 2015 and Supreme Court decision in the case of Singh Enterprises vs. CCE [2008] 12 STT 21, the High Court held that after availing remedy unsuccessfully before another Court, it is not legally permissible to accept challenge to the same order under writ jurisdiction as it would result in unsettling a legally settled position. It was further held that when appellate authority has already decided the matter against the petitioner, the writ Court is debarred from doing so particularly, when the appellate authorities’ orders are not challenged in the writ jurisdiction.
