TMI Blog2014 (12) TMI 866X X X X Extracts X X X X X X X X Extracts X X X X ..... t to recipient of services - Held that:- Section 66 is charging section which provides for levy of tax on the value of taxable service rendered by a person to another. Section 67 provides for valuation of taxable service. Section 68 provides that every person providing taxable service shall pay service tax at the prescribed rates and in the manner prescribed. Neither the Act nor the rules provides for any double assessment nor it can be permitted in view of the fact that the transaction in question have been assessed by the jurisdictional authority. Article 265 of the Constitution of India provides that no tax shall be levied or collected except by authority of law. Thus the order dated 22.5.2008 passed by the respondent no. 3 was a complete nullity and therefore, the demand created thereunder was not legally recoverable from the petitioner. If an authority or court lacks inherent jurisdiction to pass a decree or order, the decree or order passed by such authority or court would be non est and void ab-initio. The defect of jurisdiction goes to the root of the matter. It strikes at the very authority of the court to pass the order. Competence of a court to try a case goes to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 1, 2, 3, 4 and 5 and Sri Gyan Prakash, learned Assistant Solicitor General of India for respondent no. 6. 2. In this writ petition the petitioner has prayed for the following relief:- (i) Issue a writ, order or direction in the nature of certiorari quashing the impugned order dated 30.1.2014 alongwith the orders dated 11.6.2013, 10.10.2013 and 22.5.2008. (ii) Issue a writ, order or direction in the nature of mandamus directing the respondent authorities not to take any coercive steps in pursuance of the order dated 30.1.2014 alongwith the orders dated 11.6.2013, 10.10.2013 and 22.5.2008. Facts of the case. 3. Briefly stated the facts of the present case are that the petitioner is a service provider as Rent-a-cab-operator. He applied for registration under the Finance (No. 2) Act of 1994 (hereinafter referred to as the Act) with the Deputy Commissioner, Central Excise and Service Tax Division-I, Allahabad i.e. respondent no. 2 who issued a registration certificate allotting STC No. AAEFV4956GST001 vide order dated 4.4.2006 showing address of the petitioner as Chak Chhatnag Road, Jhunsi, Allahabad . An assessment order dated 16.3.2010 for the period from September ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t. 8. Thereupon the petitioner moved an application dated 30.9.2013 to recall the orders passed by respondent no. 3 on the ground that the jurisdictional authority i.e. respondent no. 2 and has already assessed the petitioner for the same period and transactions. The aforesaid recall application of the petitioner was rejected by the respondent no. 3 vide impugned order dated 10.10.2013 on the ground that the order in original dated 22.5.2008 passed by him was not challenged by the petitioner in appeal. 9. Thereafter the petitioner applied and obtained certified copy of demand-cum-show cause notice issued by respondent no. 3 and the order in original dated 22.5.2008, in order to file appeal before the Commissioner (Appeal). The appeal No. 259 of 2013 filed by the petitioner was rejected by the respondent no. 1 on the ground of delay vide order dated 30.1.2014. 10. In paragraph 37 of the writ petition the petitioner has stated as under:- That being aggrieved by the order dated 30.1.2014 the petitioner had preferred a writ petition no. 160 of 2014 but the Court was of the view that since the SCNs/ order in original issued by the office Deputy Commissioner Central Excise D ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efore, submits that these orders should have been withdrawn suo-motu by the respondent no. 3/5 and in any case it should have been withdrawn/recalled when the petitioner moved a recall application. He submits that even the appellate authority has also recorded a finding of fact that parallel assessment proceedings was initiated and order in original has been passed by the respondent no. 3 yet he rejected the appeal on the ground of delay. He submits that entire action of the Central Excise and Service Tax Authorities is wholly arbitrary, illegal and violative of Article 14 of the Constitution of India. He submits that the entire payments of the petitioner due from respondent no. 4 was withheld at the instance of respondent no. 3 in consequence to the impugned attachment orders which are wholly null and void. He made number of other submissions on several occasions which were noted in the orders passed by this Court on different dates. He therefore, submits that the impugned orders may be set aside and the writ petition may be allowed with heavy costs for causing harassment to the petitioner and depriving him the enjoyment of his lawful money. He relied upon the judgment of Hon' ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... A parallel assessment proceedings was initiated by the respondent no. 3 subsequent to the registration dated 4.4.2006 granted by the respondent no. 2 to the petitioner and an ex-parte order in original dated 22.5.2008 was passed by him against the petitioner for the same period and for the same transactions in respect of which the jurisdictional assessing authority i.e. respondent no. 2 assessed the petitioner. The only ground on which the recall application of the petitioner was rejected by the respondent no. 3 was that ex-parte order in original dated 22.5.2008 passed by him has attained finality inasmuch as it was not challenged in appeal by the petitioner. According to the petitioner he was having no knowledge of the aforesaid ex-parte order in original dated 22.5.2008 and came to know about it when respondent no. 3 sent him recovery letter dated 11.6.2013 followed by notice dated 13.9.2013. Thereafter he preferred appeal no. 259 of 2013 before the respondent no. 1 appellate authority which was rejected on the ground of delay vide order dated 30.1.2014. In the aforesaid order the Appellate Authority also observed as under:- But, before summing up and without going into the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tiated parallel assessment proceedings against the petitioner and passed ex-parte order in original dated 22.5.2008 in respect of the same transactions and for the same period for which the petitioner was assessed by the jurisdictional assessing authority i.e. respondent no. 2. The only objection taken by the respondents department is that since the petitioner has failed to challenge within limitation the unauthorized ex-parte order dated 22.5.2008 passed by the respondent no. 3 and appeal against it was also rejected on the ground of delay and as such the demand created under the said orders cannot be withdrawn and is liable to be recovered from the petitioner. 21. In my opinion the stand taken by the respondents is not only wholly misconceived but also unfair. Section 66 is charging section which provides for levy of tax on the value of taxable service rendered by a person to another. Section 67 provides for valuation of taxable service. Section 68 provides that every person providing taxable service shall pay service tax at the prescribed rates and in the manner prescribed. Neither the Act nor the rules provides for any double assessment nor it can be permitted in view of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a 9, 10 and 11) Hon'ble Supreme Court held as under:- 9. The main question which arises for our consideration is whether the decree passed by the trial court can be said to be 'null and 'void'. In our opinion, the law on the point is well settled. The distinction between a decree which is void and a decree which is wrong, incorrect, irregular or not in accordance with law cannot be overlooked or ignored. Where a court lacks inherent jurisdiction in passing a decree or making an order, a decree or order passed by such court would be without jurisdiction non est and void ab initio. A defect of jurisdiction of the court goes to the root of the matter and strikes at the very authority of the court to pass a decree or make an order. Such defect has always been treated as basic and fundamental and a decree or order passed by a court or an authority having no jurisdiction is nullity. Validity of such decree or order can be challenged at any stage, even in execution or collateral proceedings. 10. Five decades ago, in Kiran Singh Ors. v. Chaman Paswan Ors., [1955] l SCR 117 this Court declared; It is a fundamental principle well established that a decree passe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ally disposes of the case. It is the duty of the aggregate of those Tribunals, if I may use the expression, to take care that no act of the Court in the course of the whole of the proceedings does an injury to the suitors in the Court. 83. This passage was quoted in the Gujarat High Court by D.A. Desai, J. speaking for the Gujarat High Court in Vrajlal v. Jadavji (supra) as mentioned before. It appears that in giving directions on 16th February, 1984, this Court acted per incuriam inasmuch it did not bear in mind consciously the consequences and the provisions of sections 6 and 7 of the 1952 Act and the binding nature of the larger Bench decision in Anwar Ali Sarkar's case (supra) which was not adverted to by this Court. The basic fundamentals of the administration of justice are simple. No man should suffer because of the mistake of the Court. No man should suffer a wrong by technical procedure of irregularities. Rules or procedures are the hand-maids of justice and not the mistress of the justice. Ex debite justitiae, we must do justice to him. If a man has been wronged so long as it lies within the human machinery of administration of justice that wrong must be remedied. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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