TMI Blog2014 (5) TMI 262X X X X Extracts X X X X X X X X Extracts X X X X ..... as coming up before the Tribunal cannot be appreciatedand ittantamount to overreaching the process of law which cannot be approved by this Court. The notice issued u/S.87(b) of the Finance Act, 1944 dt.21.1.2014 and further action debiting the petitioner’s Bank account dt.22.1.2014 are hereby quashed and set aside and the respondents are directed to refund the amount which was debited on 22.1.2014 from the petitioner’s bank account within two weeks. - Decided in favor of assessee. - D. B. Civil Writ Petition No. 1149/2014 - - - Dated:- 9-4-2014 - Ajay Rastogi And JK Ranka,JJ. For the Petitioner : Mr. PK Kasliwal For the Respondents : Mr. Sarvesh Jain ORDER By The Court(Per Hon'ble Mr. Justice Ajay Rastogi) Heard counsel for the parties. The petitioner is a proprietorship firm providing maintenance service under contract/agreement to the service receiver i.e. respondent, Jaipur Nagar Nigam. The brief facts culled out are that a show cause notice dt.18.10.2010 (Ann.1) came to be served upon petitioner alleging that he has failed to pay service tax payable during the period 16.6.2005 to 31.3.2010 and thus contravened the provisions of Sections ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng note of the interest of the revenue and the financial hardship of the appellant into consideration, passed the order which reads infra- We looked into a sample work order of the appellant Shri Suresh Jaiswal. That shows that there were various activities carried out by that appellant to make the park useful. Prima facie, keeping aforesaid averments of both sides in view and also with the changed conception of law, we are of the belief that pre-deposit should be called for in all the three cases. As an interim measure, we direct all the three appellants to deposit 15% of service tax demand in each case within eight weeks from today and make compliance on 20.12.2012. Subject to deposit, there shall be waiver of pre-deposit of balance dues during pendency of the appeal or for a period of six months whichever is earlier . After expiry of period of six months, a notice dt.3.10.2013 came to be served upon petitioner from the office of respondent that the interim protection was for a period of six months and appeal is still pending but the stay granted by the CESTAT automatically stands vacated and called upon the petitioner to deposit the balance towards service tax along with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rom 28.1.2014 which appears to be the date on which the respondent as alleged received intimation of the order passed by the Tribunal dt.23.1.2014 in their office. But the fact is that the order dt.23.1.2014 was passed by the Tribunal in the presence of the authorized representative of the department and whose presence is very much recorded in the order itself, however, the fact remains that after the proceedings stands withdrawn by the department after extension of the stay order initially granted on 20.9.2012 how farthe department was justified and within its rights to still retain the amount which was recovered after attachment of the bank account of the petitioner by debiting its account on 22.1.2014. The petition has been primarily filed for assailing attachment proceedings notice dt.21.1.2014 and consequent effect of recovery which was initiated by the respondent department by debiting the account of the petitioner on 22.1.2014 and the grievance of the petitioner further is that once the stay order has been extended by the Tribunal after hearing the parties on 23.1.2014 that became operative by fiction of law during the interregnum period and the department is not justifi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eads ad infra- 35-C (2-A) The Appellate Tribunal shall, where it is possible to do so, hear and decide every appeal within a period of three years from the date on which such appeal is filed: Provided that where an order of stay is made in any proceeding relating to an appeal filed under sub-section (1) of Section 35-B, the Appellate Tribunal shall dispose of the appeal within a period of one hundred and eighty days from the date of such order: Provided further that if such appeal is not disposed of within the period specified in the first proviso, the stay order shall, on the expiry of that period, stand vacated.'' The third proviso in Sec. 35C (2A) inserted by the Finance Act, 2013 reads ad infra- ''Provided also that where such appeal is not disposed of within the period specified in the first proviso, the Appellate Tribunal may, on an application made in the behalf by a party and on being satisfied that the delay in disposing of the appeal is not attributable to such party, extend the period of stay to such further period, as it thinks fit, not exceeding one hundred and eighty-five days, and in case the appeal is not so disposed of within the tot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 87(b) of the Finance Act, 1944 dt. 21.1.2014 served on the banker of the petitioner and the bank account of the petitioner which was debited through bank attachment on 22.1.2014 could not be held justified in the eye of law and we find substance in the submission made by the petitioner that after passing of the order by the Tribunal dt.23.1.2014 respondents remain under obligation to refund the money which was recovered from the petitioner by debiting the petitioner s account on 22.1.2014 and the very initiation of the proceedings deserves to be quashed in the eye of law in view of the order of tribunal dt.23.1.2014. Be that as it may, it is the settled principles of law and which is consistent and recognized that where a case is not considered because of multiplicity of business of the Court the party ought not to be prejudiced by that delay and when an act of the Court can prejudice no man, ditto would be for an omission in keeping with the aforesaid principles that if the matter has not been taken up for consideration on a given date at least the litigant cannot be left to suffer for suchreason over which he has no control. The reason or cause for such eventuality could be ma ..... X X X X Extracts X X X X X X X X Extracts X X X X
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