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TMI Blog2014 (5) TMI 104X X X X Extracts X X X X X X X X Extracts X X X X ..... “Cleaning Activity”. The Cleaning Activity Service was introduced with effect from 16.06.2005 and the demand was confirmed even for a period prior thereto There is no absolute bar in entertaining the writ petition under Article 226 of the Constitution despite existence of an alternative efficacious remedy. This Court finds that there has been a manifest injustice apparent on the face of the record. This Court does not feel that the jurisdiction under Article 226 of the Constitution is completely ousted. Since a strong prima facie case is made out by the petitioner, the deposit of 25% of the demand would certainly cause an undue hardship. Simultaneously, this Court also finds that the petitioner have been found guilty of suppressing the facts and have not paid the service tax under the category in which the registration is obtained. The interest of the revenue would be safeguarded if the petitioner is directed to deposit 10% of the demand confirmed in the impugned order within eight weeks from the date of the order. - observations and/or findings made in this order is prima facie and tentative one, the tribunal shall decide the appeal independently without being swayed by such o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion came to be disposed of by the CESTAT on 17.04.2013 directing the petitioner to deposit 25% of the Service Tax within a period of eight weeks. Both the orders i.e. order dated 24.08.2010 passed by the respondent no.1 and the order dated 17.04.2013 passed by the CESTAT, the respondent no.2 herein is the subject matter of the instant writ petition. The main challenge thrown to the aforesaid orders as culled out from the pleadings of the writ petition, is that the authorities cannot make out a new case divorced from the show cause notice and to impose the service tax followed by the penalty and the interest. According to the petitioner, the service tax was demanded under the category of (Commercial or Industrial Construction Services) whereas the respondent no.1 have imposed the duty under the category of Works Contracts Services. The order of the CESTAT is impugned on the plea that the Tribunal could not have directed the payment of 25% of the service tax when a strong prima facie case is made out and, therefore, the said order is an outcome of non-application of mind. On the basis of the aforesaid pleadings, the learned Advocate appearing for the petitioner submits that the in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he purpose of exercising the discretion, have granted the relief by waiving the pre-deposit of 75% of the service tax and, therefore, such discretionary order is not capable of being assailed in writ jurisdiction. Lastly it is submitted that the order of the CESTAT is an appellable one before the Division Bench of this Court and the writ petition is not maintainable. In reply the petitioner submits that the alternative remedy is not an absolute bar and the jurisdiction under Article 226 can be invoked and placed reliance upon a judgment of the Delhi High Court in case of Union of India vs- Classic Credit Ltd. reported in 2009 (236) ELT 12 (Del.) and a single bench decision of this Court in case of Ruby Rubber Industries vs- Commissioner of Central Excise, Cal-II reported in 1998 (104) E.L.T. 330 (Cal.). Undisputedly the petitioner had not only assailed the original order passed by the Commissioner of Central Excise, Bolpur but have also challenged the order passed by the CESTAT by which an application for stay by way of waiver/dispensation of the pre-deposit condition is disposed of. Section 35F of the Central Excise Act requires the deposit of the duty demanded or the pena ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed his mind to this aspect of the matter at all. He had to consider whether, if the deposit were waived, the interest of the revenue would be jeopardized. There was no suggestion or even allegation that there would be any jeopardy to the revenue if the pre-deposit were waived in the petitioner s case. Keeping in view the mandate that a discretionary power must be exercised in favour of the assessee unless there was good reasons to the contrary, no reason has been disclosed by the Collector for refusing to exercise his discretion in favour of the petitioner particularly when the revenue s interest was not said to be un-safeguarded. It is to be remembered that this Court, while remanding the matter back to the Collector had directed the petitioner to give an undertaking to this Court that it would not deal with or dispose of any of its assets except in the usual course of business or with the leave of the Court. This undertaking is still subsisting. The Collector did not reject this safeguard as inadequate. The demand relates to a period for the clearance had already been made. There is no question of the petitioner recovering the amount from its customers. The Allahabad High Cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ary power by the authority to stay/waive the pre-deposit condition, would be reduced to nugatory/illusory. Undoubtedly, the interest of the Revenue cannot be jeopardized but that does not mean that in order to protect the interest of the Revenue, the Court or authority should exercise its duty under the law to take into consideration the rights and interest of an individual. It is also clear that before any goods could be subjected to duty, it has to be established that it has been manufactured and it is marketable and to prove that it is marketable, the burden is on the Revenue and not on the manufacturer. The similar view is echoed in the Division Bench judgment of the Delhi High Court in case of Sri Krishna (supra). What could be deduced from the above reports that the Tribunal or the Commissioner (Appeals) while considering the case of waiver and/or dispensation of pre-deposit condition must record its satisfaction not only on the existence of a good prima facie case but simultaneously, should take into consideration the interest of the revenue by maintaining a balance. The discretion must be exercised on sound logic and within the settled para-meters of law and not whimsic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... irection for deposit of the demand would make undue hardship on the assessee but in later, the authorities may exercise discretion by putting conditions as to the deposit of the demand. To arrive at a finding whether a prima facie case is made out, one has to look into the legal position of law where the action of the authorities in imposing the duty under certain categories which do not find place in the show-cause notice or in other words beyond the show-cause notice. In case of Ballarpur Industries Ltd. (supra), the Supreme Court held that invocation of any provisions dehors the show-cause notice is impermissible in these words: 21. Before concluding, we may mention that, in the present case, the second and the third show cause notices are lone remitted. The first show cause notice dated 21-5-1999 is set aside as timebarred. However, it is made clear that Rule 7 of the Valuation Rules, 1975 will not be invoked and applied to the facts of this case as it has not been mentioned in the second and the third show cause notices. It is well settled that the show cause notice is the foundation in the matter of levy and recovery of duty, penalty and interest. If there is no invocatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was issued on the plea of non-deposit of the service tax for the services rendered under the Commercial or Industrial Construction Services as a Sub-Contractor amounting to the deliberate suppression. There is no whisper in the said show-cause notice that the services rendered by the petitioner under the Manpower Recruitment and Supply Agency Services or under the supply of Tangible Good Services or under the Cleaning Activity . The Cleaning Activity Service was introduced with effect from 16.06.2005 and the demand was confirmed even for a period prior thereto. The Supreme Court in case of Suchitra Components Ltd;(supra) held that the circular which is beneficial in nature operates retrospectively but the circular which is oppressive-innature should be applied prospectively in following words: 2. We have heard Mr. A.R. Madhav Rao, learned counsel for the appellant and Mr. K. Radhakrishna, learned Senior Counsel for the respondent. We have perused the orders passed by the lower Authorities and also of the Tribunal. The point raised by the learned counsel for the appellant is covered by the recent judgment of this Court in Civil Appeal No. 4488 of 2005, Commissioner of Ce ..... X X X X Extracts X X X X X X X X Extracts X X X X
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