9911796707
TMI Blog2013 (11) TMI 1008X X X X Extracts X X X X X X X X Extracts X X X X ..... titioner is allowed to the extent that the writ petitioner may now deposit 50% of the confirmed demand before the appellate authority within a period of one month from today - decided partly in favor of assessee. - W.P. (T) No. 2659 of 2012 - - - Dated:- 30-11-2012 - Prakash Tatia and Jaya Roy, J. Shri M.S. Mittal, Senior Advocate and Sumeet Gadodia, Advocate, for the Petitioner. Shri Ratnesh Kumar, Sr. SCC, for the Respondent. ORDER Heard learned counsel for the parties. 2. The present matter has peculiar facts, inasmuch as, the writ petitioner sought exemption from condition of pre-deposit under Section 35F of the Central Excise Act, 1944 as well as under Section 83 of the Finance Act, 1994 for maintaining his appeal under the provisions of the Act of 1944. The petitioner s said prayer for grant of exemption from the condition of pre-deposit of the entire amount was considered by the Commissioner (Appeals), Central Excise and Service Tax, Ranchi without giving opportunity of hearing to the petitioner under assumption that no hearing of petitioner is required. The said Commissioner vide order dated 19-12-2011, directed, rather say, permitted the petitione ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the writ petitioner, such stand has been taken by the Revenue only because of the reason that if, this contract is treated to be a contract for cleaning services, then it will not fall and will not be covered under Clause (24b) of Section 65 of the Finance Act, 1994 as the contract is for residential premises and colonies which have not been included in the definition of cleaning activity referred above. Therefore, the Revenue interpreted the contract and wrongly included the service of the petitioner to be service for maintenance . Learned counsel for the petitioner drew our attention to the various clauses of the contract and also drew out attention to the facts noted by the original authority in the original order to demonstrate before us that the contract in question is not the contract for maintenance but it was a cleaning activity contract for residential area of the unit who gave the contract to the writ petitioner. 5. Learned counsel for the petitioner vehemently submitted that in view of the position made clear by Letter No. 131/6/2005-TRU, dated 27-7-2005 also, therefore, there is no tax liability of the writ petitioner. It is submitted that petitioner is asked to pay ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w that particular burden created by the impugned order is in proportion to the liability of the petitioner. 6. Learned counsel for the Revenue vehemently submitted that Hon ble Supreme Court in the case of Benara Valves Ltd. and Others v. Commissioner of Central Excise and Another has clearly considered in what circumstances the courts may grant interim order with respect to the condition of pre-deposit and what is the meaning of undue hardship. Learned counsel for the Revenue seriously questioned the merit in the case of challenge to the impugned order which was challenged before the appellate authority. According to learned counsel for the Revenue, from any angle if the contract is examined, it squarely falls within the ambit of providing maintenance service to the company who gave the contract, may it be, in relation to the colony or garden. The order passed by the adjudicating authority is well reasoned order and cogent reasons have been given by the adjudicating authority who fastened the liability upon the writ petitioner. Therefore, there is no prima facie case in favour of the writ petitioner, much less to resulting into any undue hardship to the petitioner. 7. We hav ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ategory of maintenance . There is also prima facie, force in the submission of the learned counsel for the Revenue that there are overlapping works, hence, some of the works have been clearly mentioned in the agreement to be the work of maintenance. In view of those arguments of learned counsel for the parties, the matter is required to be considered by the fact finding authority carefully to find out the nature of the contract after taking into account the another contract obtained by the petitioner itself from the same company and after taking into account all the facts of the work to be done by the petitioner and to find out whether the contract is a contract for maintenance or it is a contract of service for cleaning activities. In view of the above reasons, we are of the considered opinion that there is prima facie case in favour of the writ petitioner. 10. So far as the question of undue hardship is concerned, we are of the considered opinion that the Commissioner (Appeals), Central Excise, Ranchi itself was of the view in the order dated 19-12-2011 that the petitioner should deposit 50% of the confirmed demand, then in that situation, there was no justification for putti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ollowed in all cases, then virtually it will make Section 35F of the Central Excise Act, 1944 redundant. We may also observe that the High Court normally will not direct subordinate courts or tribunals or appellate authorities to decide the matter on priority basis simply because the party has approached the High Court so as to deny the early hearing to all others, who could not or who have not approached the High Court. It is better to leave the docket of the lower Court and appellate Court according to discretion of lower Court and appellate Court. In view of the above reasons, since the judgment in the case of Tinplate Company giving interim relief is not a precedent, we are of the considered view that in the facts of the case, the petitioner is not entitled to same relief in view of the facts of this case. 13. However, the writ petition of the petitioner is partly allowed. The impugned order dated 11-4-2012 passed by the Commissioner (Appeals), Central Excise and Service Tax, Ranchi is set aside. The application of the writ petitioner is allowed to the extent that the writ petitioner may now deposit 50% of the confirmed demand before the appellate authority within a period o ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
