Ashok Jindal, J. - (1.) THE appellant is in appeal along with an application for stay against the impugned order wherein the Commissioner of Service Tax, Mumbai II has held as under: - - 10. Collecting service tax but not depositing the same to the Government is an intentional act of evasion of Service Tax and causes not only loss of revenue to the government but also a serious offence. M/s. Spanco BPO Service Ltd. defaulted payment of service tax of Rs. 26.90 crore for the period April 2011 to January, 2013 not filed periodical ST -3 returns and suppressed the material facts. The assessee is required to pay the service tax along with interest and also penalty. Persons responsible for committing the offence are also liable for prosecution under section 89 of the Finance Act, 1994. 11. Considering the facts and circumstances of the case and the material evidences of record, I am unable to consider favourably the requests of M/s. Spanco BPO Service Ltd., Navi Mumbai to allow them to pay the amount of Rs. 26.90 crore due in 36 equal monthly instalments and to withdraw the recovery proceedings initiated under section 87. The assessee is advised to pay the service tax due along with applicable rate of interest forthwith. The learned A.R. appearing for the Revenue raised preliminary objection against the maintainability of the appeal on the ground that as per section 86 of the Finance Act, 1994 the impugned order is neither under section 73 nor under section 83A of the Finance Act. It is contended by the learned A.R. that an appeal against an order where recovery of service tax not levied or paid or short levied or short -paid or erroneously refunded is appealable before this Tribunal and an order under section 87 of the Finance Act, 1994 is not appealable before this Tribunal In this case the impugned order has been passed under section 87 of the Finance Act, 1994, therefore, an appeal does not lie before this Tribunal.
(2.) SHRI Hari Shankar, learned Advocate appearing for the appellant submits that the appeal is maintainable before this Tribunal as per paragraph 10 of the order the finding of the learned Commissioner is that the appellant has surpassed the fact that they have paid the defaulted payment of service tax to the tune of Rs. 26.90 crore for the period April, 2011 to January, 2013. Therefore, the appellant is required to pay the service tax along with interest and also liable for penalty. This type of order can only be passed under section 73 of the Finance Act, 1994 and proceedings under section 87 of the Finance Act can be initiated only under section 73 of the Act. In this case by the impugned order the learned Commissioner has confirmed the demand as per section 73 of the Finance Act, 1994 along with the recovery proceedings under section 87 of the Act. Therefore, the appeal is maintainable before this Tribunal. The factual matter of the case is as under On 19.02.2013 a letter was issued to the appellant on the basis of an audit conducted on their service tax -3 returns furnished by the appellant for the year 2011 -12 and 2012 -13 and the appellant was asked to deposit the short payment of service tax along with interest. The appellant on receipt of the said letter made a request to provide a facility of paying the said amount in instalment as per Board's Circular No. dated 17.11.1997. Thereafter, impugned order has been passed by the learned Commissioner. Against the said order the appellant is before me.
(3.) APART from the preliminary objection raised by the learned A.R it is also argued that the appellant has not preferred an appeal against the letter dated 19.02.2013 wherein they were asked to make defaulted/short payment of service tax along with interest. On merits, he relied on the decision of the hon'ble High Court of Bombay in the case of Kamala Mills Ltd v. Union of India : 1988 (34) ELT 539 and Vaish Steels (R) Ltd. v. Chief CCE, 2000 (126) ELT 285 (All.). The learned Counsel for the appellant also argued that the matter on merits that as per the Board's Circular cited above, the Commissioner is empowered to provide the facility of payment into instalment and on the similar matter the said facility was granted to Bhatia International Ltd. vide order dated 19.09.2012. Therefore, the appellant cannot be discriminated to avail the said facility. To support his argument he relied on the decision of the Hon'ble Apex Court in the case of the State of Maharashtra v. Saeed Sohail Sheikh [Criminal Appeal Nos. 1735 -1739 of 2012, dated 2 -11 -2012] in para 36.;