IN THE HIGH COURT OF JUDICATURE AT PATNA CIVIL WRIT JURISDICTION CASE No.10529 of 2011 ====================================================== M/S Bharat Sanchar Nigam Ltd., Mobile Services, Patna, through its Accounts Officer Mosharraf Hussain, Son of late Muzaffar Hussain, aged 39 years, resident of CTO Building, Budh Marg, P.S. Kotwali, Distt. Patna. .... .... Petitioner/s Versus 1. The Union of India though the Commissioner of Central Excise, Patna. 2. The Commissioner of Central Excise and service tax, Revenue Building, Birchand Patel Marg, Patna. .... .... Respondent/s ====================================================== Appearance : For the Petitioner/s : Mr. L.N. Rastogi, Sr. Advocate with Mr. Alok Kumar Sinha, Advocate For the Respondent/s : Mrs. Nivedita Nirvikar, Sr. Standing Counsel with Mrs. Archana Sinha, Jr. Standing Counsel. ====================================================== CORAM: HONOURABLE THE CHIEF JUSTICE and HONOURABLE MR. JUSTICE BIRENDRA PRASAD VERMA ORAL ORDER (Per: HONOURABLE THE CHIEF JUSTICE) 2 08-07-2011 This Petition under Article 226 of the Constitution is filed by M/S Bharat Sanchar Nigam Ltd. (hereinafter referred to as “the Nigam”) against the order dated 18th April 2011made by the Central Customs, Excise and Service Tax Appellate Tribunal, East Regional Bench, Kolkata (hereinafter referred to as “the Tribunal”) on the stay Application No.771 of 2009 pending in Service Tax Appeal No.248 of 2009. By the said order the Nigam has been ordered to deposit a sum of Rs.2.00 crores in addition to the amount already paid within a period of eight Patna High Court CWJC No.10529 of 2011 (2) dt.08-07-2011 2 weeks. Learned counsel Mr. L.N. Rastogi has appeared for the Nigam. He has submitted that Nigam is a statutory body and, therefore, it should not be directed to deposit the amount pending the appeal. He has relied upon the calculation made at page-7 of the writ petition. He has submitted that the Nigam was indeed in default of payment of proper service tax for the years 2003-04, 2004-05 and 2005-06. However, excess deposit has been made by the Nigam in 2008.The Tribunal has erred in not appreciating the excess payment made later by the Nigam. The condition of deposit of a sum of Rs.2.00 crores pending the appeal imposed by the Tribunal is unreasonable. In support of his submission Mr. Rastogi has relied upon the judgment of the Hon’ble Supreme Court in the matters of “Bharat Petroleum Corp. Ltd. Vs. Commissioner of Sales Tax and Others [2008] 17 VST 162 (SC)] and M/S Indian Oil Corporation Ltd. Vs. The State of Bihar and Ors. [2006 BRLJ 70]”. At the first brush we were impressed by the fact that the petitioner Bharat Sanchar Nigam Limited is a public sector undertaking of Central Government and it should not be directed to pay the deficit amount pending the appeal before the Tribunal. However, on close scrutiny, we find that the Nigam does not deserve indulgence. As it is apparent from the impugned order and the averments made in the writ petition; admittedly the Nigam was in default of payment of service tax for the years 2003-04, 2004-05 and 2005-06. The allegation is that the amount of service tax collected during the period was not deposited. It is beyond our comprehension that a public sector Corporation like the Nigam should collect the amount of service tax from its Patna High Court CWJC No.10529 of 2011 (2) dt.08-07-2011 3 customers and should not deposit the same consecutively for three years. The Nigam was in default for a sum of Rs.5, 66,29,510.00. For the said deficit the Nigam is also liable to pay interest and the penalty. Making payment later is no excuse for short payment made earlier. Considering the total demand including the amount of penalty and interest, direction to pay a sum of Rs.2.00 crores cannot be said to be unreasonable. Such order certainly will not warrant interference by this Court. Learned Advocate Mr. Rastogi has also urged that the payment of Rs.2,22,62,624/- made by the Nigam has not been considered by the Tribunal. We are unable to agree with the submission. In the impugned order, the Tribunal has categorically referred to Rs.2,22,62,624/- paid by the Nigam on 17th April 2008. For the aforesaid reasons, petition is dismissed in limine. M. Rahman/- (R.M. Doshit, CJ) (Birendra Prasad Verma, J)