TMI Blog2018 (7) TMI 1677X X X X Extracts X X X X X X X X Extracts X X X X ..... RNATAKA HIGH COURT], the matter was remanded to the Commissioner of Service Tax (Appeals) to decide the appeals on merits. This Court is bound to follow the judgment of the Division Bench of this Court. The matters are remanded to the Commissioner of Service Tax (Appeals) to decide the appeals on merits without reference to the limitation and pass orders strictly in accordance with law - petition allowed by way of remand. - Writ Petition Nos. 40426-432 of 2017 (T-Res) - - - Dated:- 11-7-2018 - MR. B. VEERAPPA J. Petitioners: (By Sri. Chidananda Urs B.G., Advocate) Respondents: (By Sri. Jeevan J. Neeralgi, Standing Counsel for respondents 1 to 3) ORDER The petitioners filed the present Writ Petitions for a writ of certiorari to quash the order dated 18.04.2016 made in OIA Nos.489-548/2016 passed by the First Appellate Authority vide Annexure-K and for a direction to refund the amount paid by the petitioners as there was no authority to collect tax on the service rendered by the developer to the petitioners who are prospective buyers of Flats by construing the payment made as deposit as per the provisions of Section 72 of Indian Contract Act read with Article ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ance with law. 5. After remand, the Commissioner of Service Tax (Appeals) by the order dated 18.04.2016 passed the impugned order rejecting the appeals filed by the petitioners on the ground of delay. Aggrieved the said order, the present Writ Petitions are filed by the present Petitioners only. 6. I have heard the learned counsel for the parties to the lis. 7. Sri. B.G. Chidananda Urs, learned counsel for the petitioners vehemently contended that the impugned order passed by the 3rd respondent- Commissioner of Service Tax (Appeals) rejecting the appeals filed by the petitioners on the ground of delay of 4 months 22 days is erroneous and contrary to material on record. He would further contended that the Commissioner of Service Tax (Appeals) and the Deputy Commissioner of Service Tax rejecting the appeals for refund of the amount is contrary to the material on record. The petitioners are not liable to pay the service tax on the construction undertaken by the builder/developer in terms of the Circular No.108/02/2009 dated 29.01.2009 issued by the Board. The same has not been considered by both the authorities below. 8. He further contended that, when the rights of the pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Petitions. 11. I have given my anxious consideration to the arguments advanced by the learned counsel for the parties and perused the material on record carefully. 12. It is the specific case of the petitioners that they are the purchasers of Flats which were constructed by the developer and the developer has raised invoices on the petitioners to pay the service tax on the value of the flats constructed. Accordingly, the petitioners have paid the same including the service tax. According to the petitioners, later on, they came to know that they are not liable to pay the service tax in lieu of Circular issued by the Board in No.108/02/2009 dated 29.01.2009. Therefore, they have preferred the applications before the 2nd respondent-Deputy Commissioner of Service Tax for refund of wrongly paid amount. The Deputy Commissioner of Service Tax dismissed the appeals and the same was confirmed by the Appellate Authority. The fact remains that when the Deputy Commissioner of Service Tax rejected the claim of the petitioners, they have filed the appeals before the Commissioner of Service Tax (Appeals). Hence, there was a delay of 4 months 22 days. The Commissioner of Service Tax (Appeals ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The Appellate Authority mainly proceeded to dismiss the appeals on the ground of 4 months 22 days delay in filing the appeal. It was specifically stated by the appellants before the Appellate Authority that the petitioners have to seek more legal advice and also required more time to take a decision to understand the legal processes and the pros and cons of filing an appeal, which had caused the delay in filing the appeal, which is beyond their control. Though the Commissioner of Service Tax (Appeals) exercising his powers under Section 85 has dismissed the appeals on the ground that he cannot condone the delay of 90 days, the fact remains that when the rights of the parties are involved, this Court exercising powers under Articles 226 and 227 of the Constitution of India can condone the delay in the interest of substantial justice between the parties. It is relevant to state at this stage that when the rights of the parties are involved in respect of refund of 23,56,162/- and substantial justice has to be done to the parties and not on technical considerations and when cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gment of the Division Bench of this Court has been consistently followed by the learned Judge of this Court in the case of APOTEX RESEARCH PVT., LTD., v. UNION OF INDIA reported in 2017 (347) E.L.T. 426 (Kar.) and has taken a similar view and in similar circumstances, this Court also in the case of M/S.ICON HOSPITALITY PVT LTD., VS. UNION OF INDIA made in W.P.No.17296/2018 dated 06.06.2018 followed the Division Bench judgment and condoned the delay of 152 days therein. 18. Admittedly, in the present case, the delay was 4 months 4 days and the petitioners/appellants have explained the delay by filing the additional affidavits in pursuance of the remand order passed by this Court stated supra and explained the delay. Though the Deputy Commissioner was right in dismissing the appeals in view of Section 85 of the Finance Act, in view of dictum of Division Bench of this Court referred supra, the matter was remanded to the Commissioner of Service Tax (Appeals) to decide the appeals on merits. This Court is bound to follow the judgment of the Division Bench of this Court stated supra. 19. In view of the aforesaid reasons, the Writ Petitions are allowed. The impugned order da ..... X X X X Extracts X X X X X X X X Extracts X X X X
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