MOHABIR ENTERPRISES Vs. COMMISSIONER OF CENTRAL EXCISE

JUDGEMENT

(1.) This writ appeal is directed against the final order passed by the learned Single Judge in W.P. No. 3277 of 2013, dated 12-2-2013. The appellant herein is the writ petitioner therein. They filed the above writ petition challenging the order passed by the first respondent herein dated 22-1-2013 in directing the appellant herein to deposit a sum of Rs. 4,00,000/- in cash as pre-deposit under 35F of the Central Excise Act, 1944. The above pre-deposit order was challenged before the learned Single Judge on the ground that the writ petitioner, in their capacity as sub-contractor, need not remit service tax and the first respondent being the Appellate Authority ought to have granted full waiver of pre-deposit by considering the said fact. Further, it was contended that such direction to make pre-deposit amounts to double taxation when the tax liability stands discharged by the main Contractor. The writ petitioner also stated that the order of pre-deposit would cause undue hardship to them.

(2.) The said writ petition was resisted by the respondents herein by contending that the first respondent Appellate Authority has taken a lenient view, while considering the waiver application and thus, directed to make pre-deposit of Rs. 4,00,000/- only as against the duty demand of Rs. 47,93,469/-.

(3.) The learned Judge found that the pre-deposit order was made by the Appellate Authority only for a sum of Rs. 4,00,000/- as against the duty demand of Rs. 47,93,469/- by taking a lenient approach and therefore, the same cannot be called in question in the writ petition, in the absence of any substantial hardship made out by the petitioner. The learned Judge further found that the question regarding the petitioner's liability to pay the service tax as sub-contractor has to be considered by the Appellate Authority, at the time of deciding the appeal. The learned Judge further directed the first Appellate Authority to dispose of the Appeal within a period of six weeks from the payment of pre-deposit amount.