- (1.) Challenge in the present writ petition is to an order passed by the Customs, Excise and Service Tax Appellate Tribunal, New Delhi (for short, "the Tribunal") on August 1, 2011 (annexure P5) on an application for waiver of pre-deposit of the amount of duty, penalty and interest. The petitioner was directed to deposit 50 per cent of the tax amount on such application. The petitioner is the sub-contractor having worked for main contractors, namely, M/s. Indure Pvt. Ltd., M/s. UEM India Ltd., M/s. Demean Pvt. Ltd. and M/s. Gannon Dunkerely and Company Ltd. The petitioner was served with a show-cause notice on March 25, 2009, for the reason that the petitioner has evaded payment of service tax total amounting to Rs. 59,69,183 during the period 2004-05 and 2005-06 under section 73 of the Finance Act, 1994 (for short, "the Act"). In reply, the stand of the petitioner was that the service tax stands paid by the main contractor on the total amount inclusive of the service part, which was allotted to the petitioner by the main contractors. The adjudicating authority, vide order dated April 30, 2010, raised a demand of Rs. 54,16,682; equivalent amount of penalty under section 78 and also imposed penalties under section 76 and interest under section 75 of the Act, apart from interest.
(2.) In an appeal by the petitioner before the Tribunal, a request for adjournment was made by the counsel for the petitioner on medical ground, but the same was rejected, as the medical certificate has not been attached. After rejecting the request for adjournment, the petitioner was directed to deposit 50 per cent of the tax amount.
(3.) In the present writ petition, challenging the order passed by the Tribunal, it is asserted by the petitioner that the amount of service tax stands paid by the main contractors and in support of such assertion, the petitioner attached the treasury receipts as annexure P6. It is averred by the petitioner to the following effect : The main contractor has been depositing the amount of service tax due on the whole amount of service rendered by the main contractor which included the part of the service done by the petitioner and thus the petitioner has acted under the said bona fide belief that the petitioner is not liable to pay service tax as the same is being deposited by the main contractor. A copy of various challans for the period in dispute showing the service tax paid by some of the main contractors for the whole work which includes the part of the service rendered by the petitioner is annexed herewith as annexure P6 (colly).;