TMI Blog2008 (10) TMI 48X X X X Extracts X X X X X X X X Extracts X X X X ..... Petitioner. Shri Rajendra Prasad for, the Respondents. [Order]. - By consent of parties, the writ petition is taken up for final disposal even at the admission stage. 2. The writ petition is directed against the order of the respondent, the Commissioner of Central Excise (Appeals),Salem, made in Miscellaneous Order No.33/2008, dated 30.7.2008 which was passed as interim order pending final decision in the appeal filed by the petitioner against the order of original authority dated 13.11.2007. 3. The impugned order has been passed by the respondent/appellate authority by virtue of powers conferred under Proviso-1 to section 35F of the Central Excise Act, 1944. Under the impugned order, for the purpose of admitting t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s seen that the petitioner itself has agreed that as far as construction of Dykes is concerned, the same falls under construction service and paid an amount of Rs.1,38,400/- and the original authority has taken that into consideration and adjusted the same against the tax amount of Rs.7,30,429/-. In addition to the above said amount, the original authority has also imposed penalty which is equal to the amount of service tax under section 76 of the Act, a similar amount of penalty under section 78 of the Finance Act,1994 apart from imposing penalty of Rs.1,000/- under section 77 of the Finance Act, 1994. 6. Assailing the said order of the original authority, the petitioner has approached the respondent being the appellate authority un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a whole and since the issue involved in this case is based on the building contract at different stages, unless the respondent has taken the whole case into consideration, the hardship may not possibly be ascertained. His further submission is that while passing the interim order, the respondent has not taken into consideration the entire aspects to find out the prima facie case and in view of the same, the order has to be set aside. 9. On the other hand, Mr. Rajendra Prasad, learned counsel for the respondent would submit that in the absence of any pleading of undue hardship by the petitioner, there was no occasion for the respondent, appellate authority, to take into consideration the said aspect at all. The law is well-settled that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... whole should have been considered by the appellate authority. Only on the basis of the finding that the construction of Dykes would come under construction service attracting service tax, it is not proper on the part of the respondent to come to the prima facie conclusion that the petitioner is liable to pay tax for all the works as assessed by the original authority. Section 35F, Proviso-1 makes it very clear that the Commissioner (Appeals) or the Appellate Tribunal before passing any interim order, shall consider whether the direction for deposit as pre-deposit condition would cause undue hardship to the person against whom such direction is issued. Such a finding is not available in the impugned order of the respondent, nor did the re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (iii) amount payable under rule 57CC of Central Excise Rules, 1944; (iv) amount payable under rule 6 of CENVAT Credit Rules, 2001 or CENVAT Credit Rules, 2002 or CENVAT Credit Rules, 2004; (v) interest payable under the provisions of this Act or the rules made thereunder. 12. But, that itself is not sufficient to set aside the entire impugned order of the respondent since the order has been passed pending disposal of the appeal in which final adjudication has to be made by the appellate authority as to the correctness of the order of the original authority dated 13.11.2007. Taking into consideration that the construction of Dykes would come under construction service attracting service tax and in respect of which a finding has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n view of the same, the writ petition is disposed of with the following modification to the impugned order of the respondent dated 30.7.2008: (i) the petitioner shall deposit 50% of the remaining service tax of Rs.5,92,029/- with the Central Excise Department within a period of 30 days from the date of receipt of copy of the order; (ii) on the petitioner depositing the said amount within the time stipulated above, the respondent shall take up the main appeal and decide the same on merits and in accordance with law by giving opportunity to the parties; (iii) in the event of failure of the petitioner in complying with the direction supra, the impugned order of the respondent shall stand revived automatically. No costs. Connected ..... X X X X Extracts X X X X X X X X Extracts X X X X
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