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TMI Blog2017 (5) TMI 401X X X X Extracts X X X X X X X X Extracts X X X X ..... forthwith withdraw or cancel the said order. 2. Before we proceed further, we must set out the nature of the order that is impugned. Exhibit 'R' is that order and a copy of which is at page 231 of the paper book. It is an order-in-original and passed by the office of the Commissioner of Service Tax, Mumbai VII. The show cause notices dated 31st March, 2015 and 26th April, 2016 raising a demand of Rs. 49,10,73,448/- and Rs. 55,11,86,197/- are issued to the petitioner-Security Guards Bord for Greater Mumbai and Thane District. The show cause notices are premised on the fact that the Board was constituted in order to regulate the employment of private security guards employed in factories and establishments in Mumbai and Thane distric ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssable and recoverable by the authorities under the Central Excise Act, 1944. So much of the regime, as is available for the above purpose, under the Central Excise Act, 1944, has to be made available for the levy, assessment and recovery of service tax under the Finance Act, 1944. Therefore, the authorities exercise their power in terms of the Central Excise Act, 1944. 5. The only contention raised by Mr. Sheth is that the remedy of appeal is conditional. The appeal can be entertained only when there is compliance reported with the pre-condition of deposit of 7.5% amount of service tax confirmed together with interest and penalty. This is highly arbitrary and excessive given the nature of the functions performed by the Board and it being ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be, are mandated not to entertain any appeal. This provision reads as under:- "35-F. Deposit of certain percentage of duty demanded or penalty imposed before filing appeal. - The Tribunal or the Commissioner (Appeals), as the case may be, shall not entertain any appeal. - (i) under sub-section (1) of section 35, unless the appellant has deposited seven and a half per cent. of the duty demanded or penalty imposed or both, in pursuance of a decision or an order passed by an officer of Central Excise lower in rank than the Commissioner of Central Excise; (ii) against the decision or order referred to in clause (a) of sub-section (1) of section 35-B, unless the appellant has deposited seven and a half per cent. of the duty demanded or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed or the penalty levied: Provided that where in any particular case, the Commissioner (appeals) or the Appellate Tribunal is of opinion that the deposit of duty demanded or penalty levied would cause undue hardship to such person, the Commissioner (Appeals) or, as the case may be, the Appellate Tribunal, may dispense with such deposit subject to such conditions as he or it may deem fit to impose so as to safeguard the interests of revenue: Provided further that where an application is filed before the Commissioner (Appeals) for dispensing with the deposit of duty demanded or penalty levied under the first proviso, the Commissioner (Appeals) shall, where it is possible to do so, decide such application within thirty days from the date ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er courts. Now, a reasonable condition has been imposed. Now, it is not necessary to go into any issues or merits and once there is a security in the form of deposit, then, the appeal can be entertained and adjudicated on merits. Fruitless and avoidable litigation generated by interim/stay applications has been now curtailed. 13. Even otherwise, we do not find any substance in the argument of Mr. Sheth that it is impossible for the Board to arrange and make any deposit. What we have found from a perusal of the 1981 Act is that the Board is set up and established in the State of Maharashtra by a statute. That statute of 1981 enables, by section 6, constitution of a Board. It could be a single member Board. Its powers and duties are enumerat ..... X X X X Extracts X X X X X X X X Extracts X X X X
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