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. 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 reco