IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN WEDNESDAY, THE 3RD AUGUST 2011 / 12TH SRAVANA 1933 WA.No. 1096 of 2011() --------------------- AGAINST THE JUDGEMENT/ORDER IN WPC.15361/2011 Dated 21/06/2011 .................... APPELLANT/PETITIONER ------------------------ ROSE BED ROLLS, PARACKA HOUSE, KARIPPAYI ROAD, RAJAGIRI P.O., KALAMASSERY, COCHIN - 683 104 BY ITS PARTNER MR.ANTONY THARU. BY ADV. SRI.R.SUDHEESHKUMAR SRI.SUNIL KUMAR A.G RESPONDENTS/ RESPONDENTS -------------------------- 1. THE UNION OF INDIA, REPRESENTED BY THE SECRETARY, MINISTRY OF FINANCE, DEPARTMENT OF REVENUE, NORTH BLOCK, NEW DELHI - 110 001. 2. THE COMMISSIONER OF CENTRAL EXCISE, CUSTOMS & SERVICE TAX, C.R.BUILDING, I.S.PRESS ROAD, COCHIN - 682 108. 3. THE CUSTOMS EXCISE & SERVICE TAX, APPELLATE TRIBUNAL, (SOUTH ZONAL BENCH), WTC, IST FLOOR, FKCCI COMPLEX, K.G.ROAD, BANGALORE - 560 009. ADV. SRI.THOMAS MATHEW NELLIMOOTTIL,SC, FOR R1-2 THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 03/08/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.A.No.1096/2011 APPENDIX ANNEXURE-1: COPY OF THE SHOW CAUSE NOTICE NO.91/2009/ST DT. 29.7.2009. ANNEXURE-2: COPY OF THE ORDER IN ORIGINAL NO.12/2010 DATED 18.2.2010 PASSED BY THE COMMISSIONER OF CENTRAL EXCISE HAD CONFIRMED THE SERVICE TAX. ANNEXURE-3: COPY OF THE APPEAL NO.823 OF 2010 FILED BEFORE THE HON'BLE CESTAT, BANGALORE. ANNEXURE-4: COPY OF THE STAY ORDER NO.373 OF 2011 ON 2.5.2011 OF THE HON'BLE CESTAT, BANGALORE. ANNEXURE-R5: COPY OF THE ORDER DT.19.7.2011 IN I.A.No.11387/2011 IN W.P.(C) NO.15361/2011. ANNEXURE-A6: COPY OF FRESH APPLICATION FILED BEFORE THE HON'BLE CESTAT, BANGALORE. ANNEXURE-A7: COPY OF THE ORDER OF THE COMMISSIONER OF SERVICE TAX, PATNA. ANNEXURE-A8: COPY OF THE ORDER DT.07.12.2007 IN W.P.NO.36541/2007. //TRUE COPY// PA TO JUDGE C.N.RAMACHANDRAN NAIR & P.S.GOPINATHAN, JJ. ------------------------------- W.A.No.1096 OF 2011 -------------------------------- Dated this the 3rd day of August, 2011 J U D G M E N T ~~~~~~~~~~~ C.N.Ramachandran Nair, J. Writ Appeal is filed against the judgment of the learned Single Judge declining to interfere with the conditional order passed by the Tribunal on application filed by the appellant for exemption from pre-deposit of duty for entertaining the appeal before the CESTAT. The adjudication which is subject matter of appeal is determination of service tax payable on “business auxiliary service” rendered by the appellant which is in the form of supply of Bed Rolls to the passengers in the trains on payment made by the Railways at specified rate. The appellant's counsel contended before us that in Patna an Adjudication Officer, who is an Additional Commissioner, has taken the view that supply of Bed Rolls to passengers in the train does not constitute business auxiliary service chargeable under the Act. His further contention is that the Single Judge of the Madras High Court on being satisfied about the prima facie case W.A.No.1096/2011 2 dispensed with payment of duty for entertaining the appeal by the Tribunal. The standing counsel appearing for the department contended that the adjudication order passed by the Additional Commissioner in Patna is not binding on the department on an important issue like this and even in that case the department is filing appeal. So far as the interim order passed by the learned Single Judge of the Madras High Court is concerned, the Court has not considered the case on merits but passed an interim order. 2. After hearing both sides, we are of the view that it is neither proper nor fair on our side to consider a matter pending in appeal before the Tribunal on merits without which we cannot modify the Tribunal's conditional order directing deposit of 30 lakhs which is less than 30% of the total payment which is close to one crore. Even for modifying the Tribunal's order we have to consider the case on merits and if we proceed to do it, certainly findings will influence the Tribunal in the appeal which has to be essentially heard and disposed of on merits by them. Moreover, if we proceed to decide the case on merit, then appeal W.A.No.1096/2011 3 before the Tribunal will become infructuous and the appellant will be losing one level opportunity for contesting the matter before the statutory authority. Therefore, we do not find any justification to interfere with the judgment of the learned Single Judge upholding the Tribunal's order but granting extension of time to the appellant to make payment in terms of the Tribunal's order. Writ Appeal is accordingly dismissed. However, as a last chance, two weeks time more is granted to the appellant to deposit the amount. (C.N.RAMACHANDRAN NAIR, JUDGE) (P.S.GOPINATHAN, JUDGE) ps/3/8 W.A.No.1096/2011 4