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2013 (10) TMI 1165 - PUNJAB & HARYANA HIGH COURTWaiver of Pre-deposit – Appeal u/s35F – Whether its activities fall within the definition of “Business Auxiliary Service”, so as to eligible to service tax - Receipt of incentives from M/s Maruti Suzuki India Limited - Held that:- It is for the appellant to establish undue hardship and the mere fact that the demand of duty and penalty may appear to be excessive, is irrelevant if the appellant has not been able to establish “undue hardship” - The expression “undue hardship” relates not only to the economic wellbeing of the appellant but also to the merits of the case, thus, requiring the CESTAT to also prima-facie appraise the merits and record an opinion for or against the appellant - An appellate forum cannot where the opinion recorded does not suffer from the aforesaid defects, impose its own perception of the merits of the case whatever be the nature of “undue hardship”. The appellant has not pleaded any financial hardship or financial distress in support of its plea of “undue hardship” and has mainly confined its pleadings to the merits of the demand raised by the revenue - A perusal of the orders passed by the Assessing Officer and the Appellate Authority do not enable us to record an emphatic finding in favour of the appellant that duty demanded and penalty levied are illegal or could not have been imposed - Assessee directed to make a pre deposit of 50% of demand - Decided against assessee.
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