2013 (3) TMI 293

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.... whereunder, the authority has decided that for taking up the appeal, the pre-condition for depositing the entire amount of Rs. 47,93,469/- towards service tax, with interest, penalty, etc., had been reduced to Rs. 4 lakhs under Section 35-F of the Central Excise Act (hereinafter referred to as 'the Act') made applicable to the Service Tax as per Section 83 of the Finance Act and the balance amount was waived, is called in question, seeking to quash the same as unlawful, arbitrary and not sustainable in law. 3. According to the petitioner-Company, the officers attached to the second respondent called for certain details relating to the activities of the petitioner with one M/s.Shiv-Vani Oil and Exploration Services Limited, New D....

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....cation proceedings were transferred to the third respondent in terms of Notification No.6/2009, Service Tax, dated 30.1.2009 issued by the Chief Commissioner of Central Excise, Chennai Zone. The counsel for the petitioner appeared before the then adjudicating authority on 14.3.2011 and made submissions and the successor-adjudicating authority fixed hearing on 27.1.2012, and the counsel for the petitioner, vide letter dated 29.1.2012 informed his inability to attend the hearing due to other pre-occupation. The third respondent then fixed the hearing on 27.2.2012, on which date, the counsel for the petitioner appeared before the authority and the third respondent passed the order in Order-in-Original No.20/2012, dated 29.2.2012, levying servi....

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....hs from Rs. 47,93,469/-, and such a lenient approach has been questioned by the petitioner, which is not permissible under law, and therefore, the Writ Petition is liable to be dismissed in-limine. 7. On the above background of pleadings and the submissions, I have heard the learned counsel appearing for the parties. 8. It is not in dispute that the petitioner is a Company engaging labourers to drill the land up to a depth stipulated by the clients, which is performed manually by unskilled labourers hired by the petitioner from time to time and the petitioner informed the Department that they are only sub-contractors and as per the agreement, the petitioner is precluded from charging/collecting service tax, as the main contractors rem....

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....dered by the original authority, as a condition precedent for taking up the appeal. 10. Law is well settled that the capacity of a party to pay the pre-deposit amount had to be noticed and the financial burden and undue hardship for the party to resort to claim waiver of the pre-deposit have also to be considered. In this regard, it is worthwhile to notice a decision of a Division Bench of this Court reported in 2009 (235) ELT 231 (Trendy Moods Vs. Customs, Excise and Gold (Control) Appellate Tribunal, Chennai), wherein, this Court, after taking into account the various decisions of the Supreme Court, for and against, ultimately came to the conclusion that the capacity of the appellant therein to pay the amount having been noticed and in....

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....eposit, is no way called for interference by this Court, and therefore, the Writ Petition deserves no merit consideration, which is liable to be dismissed. 13. Further, the question regarding the petitioner's liability to pay the service tax as a sub-contractor, when it is alleged that the main contractor would remit the service tax on the services, has to be considered only by the first respondent-appellate authority at the time of deciding the appeal. 14. At this stage, learned counsel for the petitioner made a plea that the appeal pending before the first respondent-appellate authority may be directed to be disposed of within a time frame and petitioner may be given liberty to raise all the contentions that are raised in this W....