LARSEN & TOUBRO LIMITED Vs. UNION OF INDIA

JUDGEMENT

(1.) Rule, by consent made returnable forthwith. The learned counsel appearing on behalf of the Respondents waive service on behalf of the respective Respondents. By consent, the Petitions are taken up for hearing and final disposal.

(2.) In this batch of Petitions under Article 226 of the Constitution there is a challenge to a circular dated 1 January 2013 issued by the Central Board of Excise and Customs. The circular issues directions to Chief Commissioners of Central Excise and Customs in regard to the procedure to be adopted for the recovery of outstanding demands in situations where an appeal is filed against the order of the adjudicating authority before the Commissioner (Appeals) or thereafter before the CESTAT, the High Court or the Supreme Court. The assessees are aggrieved by the stipulation which has now been brought into force, the effect of which is that though an application for stay of the recovery of the demand has been filed before the appellate forum, recoveries would be proceeded with on the expiry of a stipulated period, and in certain cases immediately. According to the Petitioners when the stay application remains to be disposed of due to the inability of the appellate authority to take up the application for hearing and for disposal, and without any default on the part of the assessee, it would be arbitrary to penalize the assessee by enforcing the recovery despite the pendency of the application for stay. For convenience of reference, the facts of the lead petition in the group are being enunciated.

(3.) The Petitioners, Larsen and Toubro Limited are engaged in providing services of commission agents in India and Nepal for all kinds of earth moving equipment and other machines including accessories and spares manufactured by L & T Komatsu Limited. Two notices to show cause were issued to the Petitioners on 24 March 2005 and 24 October 2005 for the non-payment of service tax dues. The Petitioners filed their replies. By an order dated 10 October 2011 the Commissioner of Central Excise, Thane-I confirmed a demand on account of service tax for the period between April 2003 and March 2005, holding that the service provided by the Petitioners fell under the category of clearing and forwarding agent services with effect from 1 July 2003. An application for rectification was rejected. An appeal has been filed before the CESTAT together with an application for stay on 10 October 2011. The Mumbai Bench of the Tribunal notified the Petitioners on 5 November 2012 that the stay application would be posted for hearing on 16 November 2012. Due to the nonavailability of the Bench, the stay application and appeals were not listed on that day and were adjourned. On 30 November 2012, the Assistant Registrar of CESTAT informed the Petitioners that the stay application together with the appeal stood adjourned to 5 February 2013. On 22 January 2013 the Superintendent of Service Tax, Group II, Division V, Mumbai 400 002, the Third Respondent, issued a summons directing the officers of the Petitioners to appear before him on 24 January 2013 inter alia to furnish details of the bank accounts. By a letter dated 28 January 2013 the details were furnished to the Third Respondent together with a submission that for a subsequent period between April 2005 to March 2006 on a similar issue the CESTAT had allowed the appeal filed by the Petitioners. On 28 January 2013, it was alleged that the officers of the Commissionerate of Service Tax attended the office of the Petitioners and while recording a statement there was a threat to take recourse to coercive action to recover the amount which has been confirmed by the order of adjudication, though the stay application is listed for hearing before the CESTAT on 5 February 2013.