DISTANT HORIZON ORCHARD PRIVATE LIMITED Vs. COMMISSIONER (APPEALS)

JUDGEMENT

(1.) In this writ petition the petitioner has challenged an order dated February 9, 2012 passed by the Commissioner (Appeals), Central Excise, Appeal-I, Kolkata, directing the appellant to pre-deposit Rs. 30 lakhs under section 35F of the Central Excise Act, 1944 applicable to appeals relating to service tax, by virtue of section 83 of the Finance Act, 1994 and to report compliance within March 25, 2012, subject to which there would be stay of further recovery of tax/interest/penalty till the disposal of the appeal. By an order dated April 10, 2012 the Commissioner (Appeals) has dismissed the appeal of the petitioner on the ground of non-compliance of its impugned order dated February 9, 2012, whereby the petitioner was required to pre-deposit Rs. 30 lakhs. The appeal was, according to the petitioner, dismissed after service of the writ petition on the concerned respondents including the Commissioner (Appeals).

(2.) The petitioner claims to carry on business of providing services of liasoning and monitoring of movement of coal to the plants of cement manufacturing companies. During the period from September 10, 2004 to June 15, 2005, M/s. Ambuja Cement Eastern Limited and some other cement companies appointed the petitioner as their "coal loading supervisory representative" to ensure proper loading of coal and to verify the quality and quantity of the coal so loaded.

(3.) As "coal loading supervisory representative", the petitioner was required to obtain consent of coal companies to load coal into wagons on behalf of its clients; obtain sanction from the office of the Executive Director, Rail Movement, for movement of coal to clients; to supervise the loading of wagons at the collieries having regard to the proper quality and quantity; send samples of coal to the laboratory of the clients for the purpose of analysis of coal and for complying with the formalities relating to payment of freight. In terms of the contract executed by the petitioner with its clients, the petitioner was remunerated on per ton basis.