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2015 (1) TMI 811 - GUJARAT HIGH COURTWaiver of pre deposit - Cargo handling service - Receipt of amount from FCI - Amount not deposited with Central Government - Held that:- Under the circumstances and considering the facts and circumstances, as such, the learned CESTAT has not committed any error in not passing the full waiver of pre-deposit. It is required to be noted that as such the petitioner has never pleaded any financial hardship, which is required to be considered while considering the issue with respect to pre-deposit. Identical question came to be considered by the division Bench of this Court in the case of M/s. Explosion Proof Electrical Control and Ors. (2011 (10) TMI 442 - GUJARAT HIGH COURT) and in the said decision the Division Bench has considered the decision of the Hon’ble Supreme Court in the case of Benara Valves Ltd. & Ors (2006 (11) TMI 6 - SUPREME COURT OF INDIA); the decision of the Hon’ble Supreme Court in the case of Mehsana District Cooperative Milk P.U. Ltd. v. Union of India reported in [2003 (3) TMI 113 - SUPREME COURT OF INDIA] and the decision of the Hon’ble Supreme Court in the case of Indu Nissan Oxo Chemicals Industries Ltd. Union of India reported in [2007 (12) TMI 220 - SUPREME COURT OF INDIA] wherein it is held that while considering waiver of condition as to pre-deposit, condition can be waived on the ground of undue hardship. As such the petitioner has not pleaded any undue financial hardship. Now so far as safeguarding the interest of the revenue is concerned, as it is required to be noted that as such the petitioner did charge and recovered the amount of service tax from FCI, which the petitioner retained with it and did not deposit the same in the Central Government Account and, therefore, considering Section 73A of the Act the petitioner is liable to deposit the same in the Central Government Account. Under the circumstances and in the facts and circumstances of the case and considering the provisions of Section 73 of the Act, no error has been committed by the learned CESTAT in not passing the order of full waiver of pre-deposit, which the petitioner charged and recovered from FCI and did not deposit the same in the Central Government Account. It is required to be noted that as per Section 73A of the Act even if a person, who is liable to pay the service tax, has collected any amount in excess of the service tax assessed or determined and paid on any taxable service under the provisions of Chapter V of the Act or the Rules made thereunder from the recipient of taxable service in any manner as representing service tax, shall forthwith pay the amount so collected to the credit of the Central Government. Under the circumstances, the contention on behalf of the petitioner that the petitioner may not be called upon to deposit the balance amount of ₹ 5 crores as pre-deposit, the amount of service tax, which the petitioner charged and collected from FCI, cannot be sustained. - However, pre deposit amount is reduced - Decided partly in favour of assessee.
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