TMI Blog2014 (2) TMI 533X X X X Extracts X X X X X X X X Extracts X X X X ..... essee or in the absence of documents that show financial weakness, as in this case, the Appellate Authority is legitimately entitled to arrive at the conclusion that the assessee has the financial capacity to make the pre-deposit. It is well-settled that payment under compulsion of any amount which is not due and payable would also constitute hardship so far as the assessee is concerned, even though the assessee may be in a financial position to pay the same. Notification dated 1st March, 2006 which has not at all been considered - t was for the Appellate Authority to consider the prima facie case in the light of Notification I/2006-S.T., dated 1st March, 2006 on which reliance has now been placed. - appeal has been dismissed for non ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... office premises including supply of materials; electrical wiring inside the office premises including supply of materials; painting of walls, false ceiling and wooden partitions including supply of materials; flooring and polishing of tiles with supply of goods; supply of wooden materials, fabrication and polishing of wooden furniture and partitions; sanitary works including fixing and supply of materials; and the beautification of the office floors. 5. According to the petitioners, the petitioner No. 1 has, since 1985, been executing works contracts that are composite and indivisible. The petitioner No. 1 was apparently assessed to sales tax under the Bengal Finance Act and later the West Bengal Sales Tax Act, 1994 and is now being taxe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 69 of the Finance Act, 1994 read with Rule 4 of the Service Tax Rule, 1994, as amended and to pay Service Tax. 11. According to the petitioners, the petitioner No. 1 thereafter changed its registration and started paying Service Tax on the entire value of the works contract. 12. On 2nd February, 2008 a show cause notice being No. DGCEI F No. 45/KZU/KOL/ST/07/1449, dated 27th February, 2008 was issued directing the petitioner to show cause why Service Tax amounting to Rs. 26,33,691/- and educational cess amounting to Rs. 52,674/- should not be paid by the writ petitioners under the first proviso to the sub-section (1) of Section 73 of the Finance Act, 1994 as amended. The petitioner No. 1 was also asked to show cause why interest ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... earing with Mr. Shovendu Banerjee submitted that the adjudicating authority as also the Appellate Commissioner did not at all consider the Notification 1/2006-S.T., dated 1st March, 2006 of the Central Government exempting commercial or industrial service of execution of works contracts from 33% of the Service Tax. 17. Mr. K.K. Maiti, learned counsel appearing on behalf of the respondent authorities submits that this Court in exercise of jurisdiction under Article 226 of the Constitution of India ought not to interfere with a discretionary order for direction of pre-deposit. Mr. Maiti submits that the appeal might be directed to be heard, subject to the condition that the petitioner No. 1 makes pre-deposit as directed by the impugned orde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he financial capacity to make the pre-deposit. However, it is well-settled that payment under compulsion of any amount which is not due and payable would also constitute hardship so far as the assessee is concerned, even though the assessee may be in a financial position to pay the same. 21. In the instant case, Mr. Dutta has drawn the attention of this Court to the notification dated 1st March, 2006 which has not at all been considered. This Court does not express any opinion on the applicability of the said notification in the facts and circumstances of the instant case. However, it was for the Appellate Authority to consider the prima facie case in the light of Notification I/2006-S.T., dated 1st March, 2006 on which reliance has now b ..... X X X X Extracts X X X X X X X X Extracts X X X X
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