HIMALAYA CONSTRUCTION (P.) LTD. Vs. UNION OF INDIA

JUDGEMENT

(1.) The petitioner prays for a direction to set aside the order dated 9.4.2015, Annexure P.2 passed by the Principal Commissioner, Central Excise and Service Tax, Panchkula, respondent No.3 and remand the matter to the original adjudicating authority. Prayer has also been made for directing the Chief Commissioner, Delhi Zone to assign the adjudication of all the show cause notices issued to the petitioner to the Commissioner of Service Tax, Delhi. In the alternative, prayer for waiving off the payment of pre-deposit under Section 35F of the Central Excise Act, 1944 (in short, "the Act") for filing appeal before the Tribunal has been made.

(2.) A few facts relevant for the decision of the controversy involved as narrated in the petition may be noticed. The petitioner is a company registered under the Companies Act, 1956 by the name and title of M/s Himalaya Construction Company (P) Limited located at New Delhi. Respondent No.2 is the Chief Commissioner of Central Excise, Delhi Zone who has jurisdiction over the Commissionerate of Central Excise and Service Tax, Panchkula. Respondent No.3 is the Principal Commissioner of Central Excise and Service Tax Panchkula. The petitioner is engaged in providing construction services to different projects. The dispute arose in respect of project namely the Parbati Hydro Electric Project Stage III of the Central Government. The petitioner served as a sub contractor to M/s Larsen and Toubro Limited with the specific responsibility of constructing tunnels. Respondent No.3 vide order dated 8.4.2015, Annexure P.2 ordered recovery of Rs. 2,40,12,098/- as service tax, Rs. 4,80,241 as education cess plus Rs. 240,095/- as SHE cess and penalty of Rs. 2,47,32,434 arising out of the show cause notices dated 15.10.2012, Annexure P.3. According to the petitioner, the order had been passed ex parte and without considering its reply. As per provisions of the Act, the petitioner had right to file appeal to the Tribunal. However, by amendment to section 35F of the Finance Act, 2014, the power of the Tribunal to stay recovery of pre-deposit of an amount equal to 7.5% of the duty demanded has been taken away. The show cause notice mentioned above as well as another show cause notice dated 21.10.2013 issued to the petitioner for the recovery of service tax amount of Rs. 12,80,92,531/- were made answerable to the Commissioner of Service Tax Delhi. The office of the Principal Commissioner of Central Excise and Service Tax, Panchkula vide letter dated 23.9.2014 informed the petitioner that the Chief Commissioner through his order dated 14.8.2014 had transferred the said two cases to the Commissionerate of Central Excise and Service Tax Panchkula and thus the jurisdiction for adjudication of the case had been taken away from the Commissioner of Service Tax, Delhi. The third and fourth show cause notices for Rs. 98,95,590/- and Rs. 3,96,14,945/- to the petitioner dated 22.5.2014 and 28.5.2015 were issued being answerable to the Commissioner of Service Tax, Delhi II. According to the petitioner, two show cause notices had been kept answerable to the Principal Commissioner of Central Excise and Service Tax Panchkula and other two show cause notices to the Commissioner of Service Tax, Delhi II. Consequently, the petitioner requested the Chief Commissioner, Central Excise Delhi vide letter dated 24.2.2015 to assign all the cases to the Commissioner of Service Tax, Delhi. Having received no response, the petitioner is before this court through the instant writ petition.

(3.) We have heard learned counsel for the parties.