M.M. Kumar, J. - (1.) INSTANT petition filed under Article 226 of the Constitution prays for quashing interlocutory order dated 18.10.2011 rendered by the Commissioner (Appeals) whereby the petitioner has been directed to pre -deposit a sum of rupees twenty lakhs as pre -condition for hearing of the appeal. In the order -in -original dated 23.3.2011, the Addl. Commissioner (Adjudication) has confirmed the demand of service tax of Rs. 33,50,954/ - and ordered the recovery from the petitioner under Section 73 of the Central Excise Act, 1944 (for brevity 'the Act') by invoking extended period of limitation. It was further directed that interest at the appropriate rate under Section 75 of the Finance Act, 2008 be also recovered and penalty of equivalent amount of demand of service tax was imposed under Section 78 of the Act.
(2.) DURING the pendency of appeal, the petitioner raised various new issues before the appellate authority claiming that service tax stood paid by its corporate office, vendor and transporter and therefore service tax was not leviable and realizable from the petitioner. The aforesaid stand of the petitioner is discernible from para 3 of the impugned order (P.1). However, the Commissioner (Appeals) concluded that the entire matter needs to examined in detail before arriving at a decision regarding correct quantification of amount of service tax and directed the petitioner to deposit a duty of rupees twenty lakhs as pre -deposit under Section 35F of the Act within 20 days of that order and file documents in support of the claim made by them. The remaining amount of penalty imposed by the Adjudicating Authority was stayed. We have heard learned counsel at some length and are of the view that the discretion exercised by the appellate authority in passing the inter -locutory order does not suffer from any legal infirmity warranting interference of this Court. The claim made by the petitioner before the Commissioner (Appeals) has not been substantiated so far. The documents in support of the claim are yet to be co -related to the duty which might have been paid by the petitioner's corporate office, transporter or vendor. The aforesaid documents are yet to be produced before the Appellate Authority. There is no document on the record for us to presume that the petitioner has discharged the liability through any one else of paying service tax. We do not feel persuaded by any of the submissions made by the learned counsel for the petitioner that the duty claimed by the respondents has already been paid. There is no merit in the petition and the same is dismissed with costs which are quantified at Rs. 10,000/ -. The petitioners are however directed to deposit the amount of rupees twenty lakhs as per the directions of the Commissioner (Appeals) within a period of two weeks from today.
(3.) THE costs shall be deposited with the Member Secretary, Union Territory Legal Services Authority within two weeks. If the cost is not deposited the matter be listed for appropriate orders.;