2013 (5) TMI 821 - HC - Central Excise

Summary

Issues involved: Challenge to the constitutionality of Circular dated 1/1/2013, recovery of service tax demand, direction for stay application before the Tribunal.

Constitutionality of Circular dated 1/1/2013:
The petitioner filed a writ petition seeking the declaration of the Circular dated 1/1/2013 as unconstitutional, null, and void. The prayer included a direction to the respondents not to recover the service tax demand mentioned in the notice dated 20/2/2013 until the appeal and stay application before the Tribunal are decided. The court noted the petitioner's reliance on a judgment in M/s.Simran Construction Co. Vs. Union of India & Ors., which directed the appellate authority/CESTAT to hear and decide stay applications within a specified timeframe, with a prohibition on coercive recovery steps during this period.

Opposition to passing of order:
The counsel for the respondents opposed the passing of a similar order in the present case, citing the long pendency of the writ-petitioner's appeal before the Commissioner (Appeals) Central Excise Jaipur-I since 2004. The appeal had been dismissed in default and later restored, leading to the contention that the same order may not be appropriate in this case.

Court's decision:
The court found no justification in the respondents' counsel's submission and directed the Commissioner (Appeals) Central Excise Jaipur-I to decide the appeal or, at least, the stay application within eight weeks from the date the parties appear before it. The writ petition was disposed of accordingly, with parties instructed to appear before the Commissioner on a specified date. Additionally, the court ordered that no coercive action for the recovery of service tax should be taken against the petitioner until the specified date.