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2014 (7) TMI 586 - BOMBAY HIGH COURTWaiver of pre deposit - Online Information and Database Access or Retrieval Service - Tribunal held that there was no prima facie case in favour of assessee hence demand ₹ 147 crore out of total demand of ₹ 187 crores - while ordering pre-deposit tribunal distinguished the decision in the case of United Telecom (2008 (8) TMI 191 - CESTAT, BANGALORE) wherein tribunal observed that ownership of data is relevant - Held that:- The Tribunal found that out of total service tax demand of ₹ 187 crores an amount of ₹ 147 crores is within the normal period of limitation. However, we are of the opinion that the Tribunal having noted the financial hardship should have considered the claim of the Appellants that they are suffering huge losses. The Appellants pointed out that for the quarter ending on 30.09.2013 the net loss incurred is ₹ 1246.39 crores. However, the Tribunal was informed that the current assets show an amount of ₹ 4438.85 crores as on 30.09.2013. In view of huge assets available the Appellants should be put to terms. The Tribunal's direction to deposit a sum of ₹ 147 crores out of total demand of ₹ 187 crores and when the point was imminently arguable, visits the Appellants with serious consequences. - Decision in the case of Sri Srinivasa Theatre and others v/s Government of Tamil Nadu and others [1992 (3) TMI 308 - SUPREME COURT OF INDIA] followed. Tribunal could have properly balanced the rights and equities that to a limited extent a case for interference in the impugned order and direction is made out. Though not treating this order as a precedent, but confining and restricting it to the facts and circumstances of the Appellant's case that we entertain this Appeal. We entertain it only on a limited point that when the Tribunal is exercising its discretion it ought to be present its mind that if there are conflicting opinions and rendered by its different Benches, then, the Assessee should not be visited with such consequences as would amount to denying the right of appeal or completely prejudicing the case on merits. Though the provision of law in this case makes no reference to ownership, but there was an order passed making it a relevant test, then, such condition as is imposed in the present case cannot be said to be justified - order modified and Tribunal is directed to this extent that in the event the Appellants furnish a bank guarantee of a nationalized bank in the sum of ₹ 50 crores within a period of Eight weeks from the date of receipt of a copy of this order, there will be waiver of condition of predeposit and stay of recovery pending the hearing and final disposal of the Appeal before the Tribunal. It would be open for the Appellant to deposit part of the amount in cash and the balance could be secured by a bank guarantee as above - stay order modified - Decided partly favour of assessee.
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