JUDGMENT : M.R. Shah, J. By way of this petition under Article 226 of the Constitution of India, petitioner has prayed for an appropriate writ, direction and order to quash and set aside the impugned communication dated 12.10.2012 by the Superintendent (Preventive), Central Excise & Customs, Surat-II by which the petitioner is directed to pay up the service tax of Rs. 38,27,023/- for the period from April 2011 to September 2012, the service tax + education cess etc. due and payable by the service provider. 2. Facts leading to the present Special Civil Application in nutshell are as under: 2.1. That the petitioner is a manufacturing company engaged in the business of import and export of pharmaceutical goods. That the petitioner had availed services of M/s. Ashish Enterprises (hereinafter referred to as "service provider") for the purpose of supplying manpower in the factory of the petitioner for various purposes like loading, unloading, packaging, housekeeping etc. For the aforesaid purpose, petitioner entered into a contract with the service provider inclusive of the contract for the disputed period. It is also required to be noted at this stage that even as on today the service provider is supplying the manpower/labourers to the petitioner. That an amount of more than Rs. 2 crores is due and payable by the petitioner to the service provider for supply of manpower etc. to the petitioner. It appears that an amount of Rs.38,27,023/for the period from April 2011 to September 2012 is due and payable by the service provider to the department/revenue towards the service tax, education cess etc. By impugned communication dated 12.10.2012 the petitioner is called upon/directed to pay up the service tax of Rs. 38,27,023/- due and payable by the service provider to the department/revenue, for the period from April 2011 to September 2012. 2.2. Feeling aggrieved and dissatisfied with the impugned communication dated 12.10.2012, the petitioner – recipient of the service from the service provider has preferred the present special civil application under Article 226 of the Constitution of India. 3. Shri Devan Parikh, learned Counsel appearing on behalf of the petitioner has vehemently submitted that impugned communication directing/calling upon the petitioner to pay up the service tax, due and payable by the service provider is absolutely illegal and most arbitrary. 3. Shri Devan Parikh, learned Counsel appearing on behalf of the petitioner has vehemently submitted that impugned communication directing/calling upon the petitioner to pay up the service tax, due and payable by the service provider is absolutely illegal and most arbitrary. It is further submitted that the impugned demand of service tax from the petitioner is ex facie without jurisdiction and clearly beyond the provisions of any law. It is submitted that as such the petitioner has not provided any service but is the recipient of the service. It is submitted that department is seeking to recover from the petitioner service tax which is not paid by the service provider. 3.1. It is further submitted by Shri Parikh, learned Counsel appearing on behalf of the petitioner that the service provided by the service provider is covered under the category "manpower recruitment and supply agency services" and under the aforesaid category, the service provider is required to pay the service tax. It is submitted that thus under the service tax law, the service tax is not payable by the recipient of service under the aforesaid service category. It is submitted that therefore, the impugned demand of service tax from the petitioner – recipient of service is wholly without jurisdiction and authority under the law, which deserves to be quashed and set aside. 3.2. When the attention of Shri Parikh, learned Counsel appearing on behalf of the petitioner was drawn to section 87 of the Finance Act, 1994 [hereinafter referred to as "Act"], Shri Parikh, learned Counsel has submitted that as such section 87 of the Act would not be applicable to the facts of the present case and even if it is applicable, the Department has to first try to recover the amount from the service provider. It is submitted that as such nothing is on record that any efforts were made by the department to recover the amount of service tax from the service provider. It is submitted that therefore the department cannot be permitted to act as collecting agent of a party – service provider. 3.3. It is further submitted that even otherwise the impugned demand even considering section 87 of the Act cannot be sustained as there is a dispute between the petitioner and the service provider and as such it cannot be said that approximately more than Rs. 3.3. It is further submitted that even otherwise the impugned demand even considering section 87 of the Act cannot be sustained as there is a dispute between the petitioner and the service provider and as such it cannot be said that approximately more than Rs. 2 crores is due and payable by the petitioner to the service provider. It is submitted that therefore when the amount due and payable by the petitioner to the service provider is disputed, the department cannot be permitted to recover the amount of service tax due and payable by the service provider in exercise of powers under section 87 of the Act, from the amount due and payable by the petitioner to the service provider, which is disputed. It is submitted that as such against the total bills of Rs. 6.24 crores raised by the service provider, petitioner has already paid a sum of Rs. 4.07 crores and the balance amount is not paid as the same is disputed. It is submitted by Shri Parikh, learned Counsel appearing on behalf of the petitioner that as such amount of Rs. 2 crores is not due and payable by the petitioner to the service provider. It is submitted that as the petitioner does not believe that amount of Rs. 2 crores is payable by the petitioner to the service provider, the department has to accept the same. According to Shri Parikh, learned Counsel appearing on behalf of the petitioner, if the petitioner says that there is a dispute, it is to be accepted by the department that the amount is disputed. It is submitted that as such Court is not required to go into the question whether any bona fide dispute is there or not. It is further submitted by Shri Parikh, learned Counsel appearing on behalf of the petitioner that even for the period prior to the period in question, amount due and payable to the service provider has been paid and even for the subsequent period also substantial amount is paid and for the period in question, part payment is made and therefore, it is to be presumed that the balance amount is disputed. It is submitted that therefore the impugned demand of service tax due and payable by the service provider, from the petitioner – recipient of the service is absolutely illegal, most arbitrary and without authority under the law which deserves to be quashed and set aside. 3.4. Shri Devan Parikh, learned Counsel appearing on behalf of the petitioner has further submitted that even otherwise considering the fact that the petitioner is a sick industrial undertaking and is before the BIFR, considering section 22 of the Sick Industrial Companies (Special Provisions) Act, 1985 [hereinafter referred to as "S.I.C.A."], the impugned demand of service tax from the petitioner cannot be sustained. In support of his above submissions, Shri Parikh, learned Counsel appearing on behalf of the petitioner has heavily relied upon the decision of the Division Bench of this Court in the case of Core Healthcare Ltd. v. Union of India reported in 2005(192) ELT 40 (Guj.) as well as the decision of the Andhra Pradesh High Court in the case of Bharat Heavy Plate and Vessels Ltd. v. Asstt. C.C.E., Vizag II reported in 2006(203) E.L.T. 544 (A.P.). Shri Parikh, learned Counsel has also relied upon the recent decision of the Hon'ble Supreme Court in the case of Raheja Universal Limited v. NRC Limited reported in AIR 2012 SC 1440 in support of his submissions that in view of the bar under section 22 of SICA, the impugned communication deserves to be quashed and set aside. It is further submitted that even if the service provider would have initiated the proceedings for recovery of its dues or filed a winding up petition, in that case, the suit or the company petition is bound to be stayed in view of section 22 of S.I.C.A. It is submitted that therefore it is not open for the revenue to collect the amount from the petitioner, which otherwise even the service provider may not recover by way of suit or company petition. Making above submissions and relying upon above decisions, it is requested to allow the present special civil application. 4. Present petition is opposed by Shri R.J. Oza, learned Counsel appearing on behalf of the respondent – revenue/department. It is submitted that as such approximately more than Rs. 2 crores is due and payable by the petitioner – recipient of service to the service provider. 4. Present petition is opposed by Shri R.J. Oza, learned Counsel appearing on behalf of the respondent – revenue/department. It is submitted that as such approximately more than Rs. 2 crores is due and payable by the petitioner – recipient of service to the service provider. It is submitted that as such it was never the case on behalf of the petitioner that there was any dispute between the petitioner and the service provider and even the amount of approximately more than Rs. 2 crores, due and payable by the petitioner to the service provider is disputed. It is submitted that as such no material and/or evidence has been produced on record to suggest that there is any dispute that at any point of time there was any dispute with respect to the amount due and payable by the petitioner to the service provider. It is submitted that even in the present petition also originally it was never the case on behalf of the petitioner that there is any dispute between the petitioner and the service provider. It is submitted that on the contrary it was submitted that as and when the bills are submitted by the service provider, they are paid. It is submitted that only when provision of section 87 of the Act was pointed out to the learned Counsel for the petitioner, thereafter for the first time the petitioner has submitted that there is a dispute between the petitioner and the service provider with respect to the amount due and payable to the service provider. It is submitted that except the vague averments by way of amendment in the petition, no concrete material has been produced to show that with respect to the amount of Rs. 2 crores, which is due and payable by the petitioner to the service provider, there is any dispute. It is submitted that only with a view to get out section 87 of the Act, now the petitioner has tried to make out a case that there is a dispute between the petitioner and service provider with respect to the amount due and payable. 4.1. It is submitted that as such the impugned communication is absolutely in consonance with section 87 of the Act. It is submitted that considering provision of Section 87 of the Act, it cannot be said that the impugned demand is without jurisdiction and/or authority under the law. 4.1. It is submitted that as such the impugned communication is absolutely in consonance with section 87 of the Act. It is submitted that considering provision of Section 87 of the Act, it cannot be said that the impugned demand is without jurisdiction and/or authority under the law. 4.2. It is further submitted by Shri Oza, learned Counsel appearing on behalf of the revenue that as such a case/offence has been booked against the service provider for nonpayment of service tax and therefore, it cannot be said that as such no steps are taken by the department to recover the service tax from the service provider. 4.3. Now, so far as the contention on behalf of the petitioner that as the company is before the B.I.F.R. and therefore, in view of section 22 of S.I.C.A., there cannot be any recovery of service tax and/or coercive steps to recover the amount of service tax from the petitioner is concerned, it is submitted by Shri Oza, learned Counsel for the revenue that the amount of service tax due and payable under the impugned communication is for the period after the petitioner had approached the B.I.F.R. and for the services availed by the petitioner after the petitioner had approached the B.I.F.R. and therefore, it is a continuing liability for the period after the petitioner had approached the BIFR. It is submitted that as such the petitioner is running company which had availed the service by the service provider for the period after the petitioner had approached the B.I.F.R. and therefore, the bar under section 22 of S.I.C.A. would not be applicable. Shri Oza, learned Counsel appearing on behalf of the revenue has heavily relied upon the decision of the Hon'ble Supreme Court in the case of Deputy Commercial Tax Officer v. Corromandal Pharmaceuticals reported in AIR1997 SC 2027. 4.4. Now, so far as the reliance placed upon the decision of the Hon'ble Supreme Court in the case of Raheja Universal Limited (Supra) and decision of this Court in the case of Core Healthcare Ltd. (Supra) as well as decision of Andhra Pradesh High Court in the case of Bharat Heavy Plate & Vessels Ltd. (Supra) is concerned, it is submitted that on facts the said decisions would not be applicable to the facts of the case on hand. Making above submissions and relying upon above decision, it is requested to dismiss the present petition. 5. Heard learned Counsel appearing on behalf of the respective parties at length. At the outset it is required to be noted that by impugned communication/demand, petitioner is directed to pay the service tax of Rs. 38,27,023/, due and payable by the service provider M/s. Ashish Enterprises. It appears that a sum of approximately more than Rs. 2 crores is due and payable by the petitioner to the service provider as out of total bills of Rs. 6.24 crores, the petitioner company has paid Rs. 4.07 crores to the service provider. Hence, balance amount is due and payable by the petitioner to the service provider. Till the present petition came to be amended after attention of learned Counsel for the petitioner was drawn to provision of section 87 of the Act, it was never the case on behalf of the petitioner that there is any dispute between the petitioner and the service provider with respect to the aforesaid amount due and payable by the petitioner to the service provider. On the contrary in the special civil application it has been specifically pointed out that as and when the bills are raised by the service provider, they are paid. Only with a view to get out of the provision of section 87 of the Act, subsequently as an afterthought and by way of amendment in the petition, petitioner has come out with a case that there is a dispute with respect to the amount due and payable by the petitioner to the service provider. According to the learned Counsel appearing on behalf of the petitioner, as other amounts have been paid and the balance amount has not been paid, it is to be presumed that there is a dispute with respect to the amount due and payable by the petitioner to the service provider. It is also the case on behalf of the petitioner that when according to the petitioner the amount is disputed, it is to be presumed that there is a dispute with respect to the amount due and payable. The aforesaid cannot be accepted. It is also the case on behalf of the petitioner that when according to the petitioner the amount is disputed, it is to be presumed that there is a dispute with respect to the amount due and payable. The aforesaid cannot be accepted. Whether there is any real dispute with respect to the amount due and payable by the petitioner to the service provider, the petitioner has to substantiate the same by producing the correspondences/evidences otherwise everybody, to get out of the provision of section 87 of the Act, would make vague averments that there is a dispute with respect to the amount due and payable and therefore, the same cannot be recovered from the recipients of service. It is required to be noted that nothing is on record that there is any dispute with respect to the amount of approximately more than Rs. 2 crores due and payable by the petitioner to the service provider. As observed herein above, only with a view to get out of the provisions of section 87 of the Act and as an afterthought now the petitioner has come out with a case that amount of Rs. 2 crores is not due and payable by the petitioner to the service provider and there is a dispute between the petitioner and the service provider. It is also required to be noted at this stage that even today the service provider is supplying the labour/manpower to the petitioner. In light of the aforesaid facts and circumstances, the applicability of section 87 of the Act and the impugned demand notice is required to be considered. Section 87 of the Act provides for recovery of any amount of service tax etc. due to the Central Government. Section 87 of the Act reads as under: "87. In light of the aforesaid facts and circumstances, the applicability of section 87 of the Act and the impugned demand notice is required to be considered. Section 87 of the Act provides for recovery of any amount of service tax etc. due to the Central Government. Section 87 of the Act reads as under: "87. Recovery of any amount due to Central Government:- Where any amount payable by a person to the credit of the Central Government under any of the provisions of this Chapter or of the rules made thereunder is not paid, the Central Excise Officer shall proceed to recover the amount by one or more of the modes mentioned below:- (a) the Central Excise Officer may deduct or may require any other Central Excise Officer or any officer of customs to deduct the amount so payable from any money owing to such person which may be under the control of the said Central Excise Officer or any officer of customs; (b) (i) the Central Excise Officer may, by notice in writing, require any other person from whom money is due or may become due to such person, or who holds or may subsequently hold money for or on account of such person, to pay to the credit of the Central Government either forthwith upon the money becoming due or being held or at or within the time specified in the notice, not being before the money becomes due or is held, so much of the money as is sufficient to pay the amount due from such person or the whole of the money when it is equal to or less than that amount; (ii) every person to whom a notice is issued under this section shall be bound to comply with such notice, and, in particular, where any such notice is issued to a post office, banking company or an insurer, it shall not be necessary to produce any pass book, deposit receipt, policy or any other document for the purpose of any entry, endorsement or the like being made before payment is made, notwithstanding any rule, practise or requirement to the contrary; (iii) in a case where the person to whom a notice under this section is sent, fails to make the payment in pursuance thereof to the Central Government, he shall be deemed to be an assessee in default in respect of the amount specified in the notice and all the consequences of this Chapter shall follow; (c) the Central Excise Officer may, on an authorisation by the Commissioner of Central Excise, in accordance with the rules made in this behalf, distrain any movable or immovable property belonging to or under the control of such person, and detain the same until the amount payable is paid; and in case, any part of the said amount payable or of the cost of the distress or keeping of the property, remains unpaid for a period of thirty days next after any such distress, may cause the said property to be sold and with the proceeds of such sale, may satisfy the amount payable and the costs including cost of sale remaining unpaid and shall render the surplus amount, if any, to such person; (d) the Central Excise Officer may prepare a certificate signed by him specifying the amount due from such person and send it to the Collector of the district in which such person owns any property or resides or carries on his business and the said Collector, on receipt of such certificate, shall proceed to recover from such person the amount specified there under as if it were an arrear of land revenue.)" 5.1. Considering the provision of section 87 of the Act when any amount payable by a person to the credit of the Central Government is not paid, the central excise officer shall proceed to recover the amount by one or more of the modes mentioned in section 87 of the Act and as per section 87(b)(i) of the Act, the Central Excise Officer may, by notice in writing, require any other person from whom money is due or may become due to such person, or who holds or may subsequently hold money for or on account of such person, to pay to the credit of the Central Government either forthwith upon the money becoming due or being held or at or within the time specified in the notice, not being before the money becomes due or is held, so much of the money as is sufficient to pay the amount due from such person or the whole of the money when it is equal to or less than that amount. 5.2. Thus, there can be a recovery of the amount due and payable by the service provider from the petitioner, out of the amount which is due and payable by the petitioner to the service provider and which is held by the petitioner. It is required to be noted that by the impugned notice as such the petitioner is called upon to make the payment of service tax only and not even the penalty and/or interest. Therefore, when an amount of more than Rs. 2 crores is due and payable by the petitioner to the service provider, which is held by the petitioner to be paid to the service provider, out of which the petitioner is directed to make payment of Rs. 38,27,023/- towards the service tax due and payable by the service provider, it cannot be said that the impugned notice/communication is in anyway without jurisdiction and/or without authority under the law. The impugned demand is absolutely in consonance with section 87 of the Act. Considering section 87 of the Act, such an amount of recovery is permissible. 5.3. 38,27,023/- towards the service tax due and payable by the service provider, it cannot be said that the impugned notice/communication is in anyway without jurisdiction and/or without authority under the law. The impugned demand is absolutely in consonance with section 87 of the Act. Considering section 87 of the Act, such an amount of recovery is permissible. 5.3. Now, so far as the contention on behalf of the petitioner that before making recovery in exercise of powers under section 87 of the Act, the department has to first try to recover the amount from the service provider and as no steps are taken by the department to recover the amount of service tax from the service provider and therefore, the impugned notice deserves to be quashed and set aside is concerned, at the outset it is required to be noted that as such the department has already tried to recover the amount from the service provider [as mentioned in the affidavit-in-reply] and not only that even an offence has been booked against the service provider – M/s. Ashish Enterprises for nonpayment of the service tax. Under the circumstances, it cannot be said that no steps are taken at all by the department to recover the amount of service tax from the service provider. 5.4. Now, so far as the contention on behalf of the petitioner that as the petitioner is before the B.I.F.R. and therefore, in view of section 22 of SICA, there cannot be any coercive action against the petitioner and/or recovery of service tax from the petitioner and the reliance placed upon the decision of the Hon'ble Supreme Court in the case of Raheja Universal Limited (Supra) and decision of this Court in the case of Core Healthcare Ltd. (Supra) as well as decision of Andhra Pradesh High Court in the case of Bharat Heavy Plate & Vessels Ltd. (Supra) is concerned, in the facts and circumstances of the case, there shall not be any bar of recovery of amount of service tax from the petitioner which is for the period after the petitioner had approached the BIFR. At the outset it is required to be noted that as such the petitioner is a running concern and has availed the services of the manpower/labourers from the service provider for the period after the petitioner had approached the B.I.F.R. and the service tax dues in question is for the period after the petitioner had approached the BIFR. Therefore, when the petitioner had availed the service of labourers/manpower subsequent to approaching the B.I.F.R. and is a running company and the impugned liability of service tax is for the period after it approached the BIFR, bar under section 22 of S.I.C.A. would not be applicable. Under the circumstances, the decisions relied upon by the learned Counsel appearing on behalf of the petitioner would not be of any assistance to the petitioner and as such the said decisions would not be applicable to the facts of the case on hand. On the contrary the decision of the Hon'ble Supreme Court in the case of Corromandal Pharmaceuticals (Supra) would be squarely applicable to the facts of the case on hand. 6. In view of the aforesaid facts and circumstances and considering the provisions of section 87 of the Act, it cannot be said that the impugned demand is illegal and/or arbitrary and/or without jurisdiction and authority under the law. Under the circumstances, present special civil application deserves to be dismissed and is, accordingly, dismissed. Application dismissed.