- (1.) BY way of these two miscellaneous applications, the petitiioner of D.B. Civil Writ Petition No.2721/2013 seeks modification of the order dated 22.07.2013 as also other apprpriate directions, essentially for the purpose of consideration of its appeal on merits by the appellate authority.
(2.) THE background in which these applications have been filed could be noticed as follows: By the Order -in -Original No.35/ST/JP -II/2012/ADC dated 24.02.2012, the Additional Commissioner, Central Excise II, Jaipur confirmed the demand of Rs.41,64,840/ - against the petitioner -applicant towards service tax and also ordered recovery of interest and penalty. The petitioner -applicant preferred an appeal and made the prayer for waiver of the condition of pre -deposit and for stay against the recovery. By the order dated 11.02.2013, the Commissioner (Appeals) directed the applicant to deposit an amount of Rs. 25,00,000/ - with the stipulations that in case of failure to deposit, the appeal would be liable to be rejected and but upon compliance, recovery of the remaining amount under the order in question would remain stayed. The said order dated 11.02.2013 was sought to be questioned by the applicant in the writ petition (CWP No. 2721/2013). In the said writ petition, notices were ordered to be issued on 15.03.2013. Then, on 10.04.2013, the learned counsel for the petitioner was directed to supply one set of paper book to the learned counsel appearing for the respondent and the matter was adjourned. Then, on 22.04.2013, and again on 06.05.2013, time was taken on behalf of the respondents for filing reply. Thereafter, on 22.05.2013 , it was given out on behalf of the respondents that the reply was being filed that day. Taking note of the submissions so made, the matter was posted in the month of July, 2013 while giving liberty to the applicant to file rejoinder in the meantime. Thereafter, on 22.07.2013, this Court, after hearing the learned counsel for the parties found no merit in the writ petition and proceeded to dismiss the same. However, in the facts and circumstances of the case, this Court granted four weeks' time to the applicant to deposit the amount in question. The order dated 22.07.2013, in its entirety, reads as under: "Heard finally with the consent of the learned counsel for the parties. 2. The writ petition is directed against the interim order dated 11th February, 2013 (Annexure -14), whereby Commissioner (Appeals -II) Custom and Central Excise, Jaipur, disposed of the stay petition of the petitioner by directing him to deposit Rs. 25 lakhs as service tax within two weeks of the receipt of the order, failing which the appeal would be liable for rejection for non -compliance of the provisions of Section 35F of the Central Excise Act, 1944 read with Section 83 of the Finance Act, 1994. 3. Learned counsel for the petitioner has submitted that there is strong prima facie case in favour of the petitioner, therefore, the direction given by Appellate Authority to deposit Rs. 25 lakhs is unreasonable. He has submitted that the entire amount of demand should have been stayed during the pendency of the appeal by the Appellate Authority. 4. Per contra, Shri Vineet Kumar Mathur, learned counsel appearing for the respondent supported the impugned order and submitted that this was a case where the demand of service tax, penalty and interest was more than Rs. 1,23,00,000/ -, but out of this amount, the Appellate Authority has directed to deposit only Rs. 25 lakhs. In these circumstances, no interference should be made by this Court in the impugned order. 5. We have considered the submissions of the learned counsel for the parties. 6. The Assessing Officer has passed an order against the petitioner directing him to deposit service tax of Rs. 41,64,840/ - along with interest and also the penalty. Being aggrieved with the order in original, the petitioner preferred an appeal along with stay petition. The Appellate Authority disposed of the stay petition as mentioned above vide order dated 11th February, 2013. Being aggrieved with the same, the petitioner has preferred this writ petition. From the impugned order, it appears that there is a demand of service tax against the petitioner of Rs. 41,64,840/ -. The same amount has been levied as interest and in addition to it, penalty of the same has also been levied. In these circumstances, we find that there is a total demand of more than Rs. 1,23,00,000/ - against the petitioner and out of which, the Appellate Authority has directed the petitioner to deposit only a sum of Rs. 25 lakhs, which cannot be said to be unreasonable in any manner whatsoever. 7. So far as the submission of the learned counsel for the petitioner about prima facie case is concerned, it is relevant to mention here that it is a settled law that in the matter of money, particularly, the tax matters, there cannot be irreparable injury. If the petitioner's appeal is allowed, the amount would be refunded to the petitioner with interest by the department at the rate prescribed under law. 8. In the circumstances, we find no merit in the writ petition and the same is accordingly, dismissed. 9. Learned counsel for the petitioner prays for extension of time to deposit the amount as the amount has not been deposited so far. 10. In the facts and circumstances of the case, we grant four weeks' time from today to the petitioner to deposit the amount in question with the department and in case, the amount is deposited, as directed, the Appellate Authority shall hear and decide the appeal within a period of two months from the date of deposit of amount. 11. Stay application no. 2048/2013 also stands disposed of."
(3.) THEREAFTER , the petitioner -applicant filed the first Miscellaneous Application (No.169/2013) on 01.08.2013 pointing out that at the time of passing of the order on 22.07.2013, it was not in the knowledge of the applicant nor was it informed on behalf of the respondents that the appeal of the applicant with the Commissioner (Appeals) had purportedly been dismissed on 07.06.2013, i.e., even before passing of the order by this Court. According to the applicant, this fact came to its notice only when the Superintendent, Central Excise visited the premises on 26.07.2013 and served the said order dated 07.06.2013.;