IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.13628 of 2011 With Interlocutory Application No. 5893 of 2011 In Civil Writ Jurisdiction Case No.13628 of 2011 ====================================================== M/S Bharat Sanchar Nigam Ltd, Patna, through its Deputy General Manager(Finance), Prahalad Prasad, son of Late Anirudh Prasad, aged 59 years, resident of Telephone Bhavan, R-Block, P.S.-Kotwali, District-Patna. .... .... Petitioner/s Versus 1. The Union of India through 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, Advocate. For the Respondent/s : Ms. Nivedita Nirvikar and Ms. Archana Sinha, Advocates. ====================================================== CORAM: HONOURABLE THE CHIEF JUSTICE and HONOURABLE MR. JUSTICE BIRENDRA PRASAD VERMA ORAL ORDER (Per: HONOURABLE THE CHIEF JUSTICE) 4 21-09-2011 By order dated 13th September 2011 we had allowed the proposed amendment to be carried out within one week from the date of the order. The learned advocate has not carried out the order. The amendment may be carried out within one week from today, failing which the amendment shall stand refused. This application under Article 226 of the Constitution has been filed by M/s Bharat Sanchar Nigam Ltd, a Public Sector Corporation of the Central Government, against the order Patna High Court CWJC No.13628 of 2011 (4) dt.21-09-2011 2 dated 28th March 2011 made by the Central Excise and Service Tax Appellate Tribunal, East Regional Bench, Kolkata (hereinafter referred to as “the Tribunal”) in Service Tax Appeal No. 86 of 2008 against the demand of service tax of more than Rs. 5,00,00,000/- for the financial years 2003-04 and 2004-05. The petitioner preferred above appeal before the Tribunal. Pending the same, the petitioner prayed for stay of the demand. By the impugned order, the Tribunal has granted stay against the demand on condition that the petitioner paid Rs. 1.5 crore against the outstanding demand within 8 weeks from the date of the order. Admittedly, the petitioner did not deposit the sum of Rs. 1.50 crores. Eventually, the appeal has been dismissed by order dated 20th June 2011. The petitioner has also challenged the said order dated 20th June 2011 by amending the writ petition. Learned Advocate Mr. Rastogi has appeared for the petitioner. He has submitted that the huge demand raised by the respondents is not justifiable. In fact the petitioner is entitled to refund of Rs. 37 lacs. He has relied upon the judgment of the Hon’ble Supreme Court in the matter of Bharat Petroleum Corp. Ltd. V. Commissioner of Sales Tax and others [(2008) 17 VST 162 (SC)]. A similar challenge was made by the petitioner in C.W.J.C No. 10529 of 2011 in respect of the similar demand. The writ petition has been rejected by us on 8th July 2011. We see no justification for interfering with the discretionary order made by the Tribunal. The Tribunal was also justified in dismissing the appeal, for the petitioner failed to comply with the direction issued by the Tribunal. Patna High Court CWJC No.13628 of 2011 (4) dt.21-09-2011 3 For the aforesaid reason the writ petition is dismissed. We may however, observe that if the petitioner pays Rs. 1.50 crore as directed by the Tribunal within four weeks from today and applies for restoration of the appeal, the Tribunal will consider and decide it in accordance with law. The Appeal is dismissed in limine. Prakash (R.M. Doshit, CJ) (Birendra Prasad Verma, J)