RENUKA PRASAD Vs. COMMISSIONER OF CENTRAL EXCISE

JUDGEMENT

(1.) By show-cause notice-cum-demand dated 18.09.2009, the Commissioner of Central Excise, Bolpur intended to impose a service tax to the tune of 3,13,41,209 together with Education Cess of Rs. 6,26,826/- and further sum of Rs. 88,666/- under S & HE Cess under proviso to Section 73 (1) of Chapter V of the Finance Act, 1994, interest at the rate applicable under Section 75 of the said Chapter as well as the penalty under Section 76, 77 & 78 of the said Chapter.

(2.) The facts narrated in the said show-cause notice are that the petitioner is providing taxable services under " Commercial or Industrial Construction Services" to one M/s Dong Fang Electrical Corporation as Sub-Contractor. The Sub-Contractor providing the aforesaid services is brought within the purview of service tax under the Circular No. 96/7/2007-ST dated 23.08.2007 as a taxable service. It is further alleged that in course of an inquiry, it was revealed that the service providers to M/s Durgapur Steel Plant are not paying the proper service tax for Town maintenance which includes the petitioner as well. From the scrutiny of the balance sheet submitted by the petitioner, it is detected that various sums received under the contract, which attracts service tax, have not been paid. It was further detected that the petitioner registered himself in the month of August 2007 under "Commercial or Industrial Construction Services" but neither paid the service tax prior thereto nor thereafter. In reply to the said show-cause notice, the petitioner took various pleas which was not accepted by the authority and eventually, the demand was confirmed by an order dated 24.08.2010.

(3.) Admittedly the petitioner assailed the said order before the Custom Excise and Service Tax Appellate Tribunal (CESTAT) by filing a statutory appeal and also filed an application for stay of the impugned order and further prayed for waiver of the pre-condition of deposit of the service tax and penalty. The said application 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.