TMI Blog2011 (10) TMI 355X X X X Extracts X X X X X X X X Extracts X X X X ..... ise Appeal No. 110 of 2011 - - - Dated:- 19-10-2011 - Goda Raghuram, N. Ravi Shankar, JJ. V. Gopala Krishna Gokhale for the Appellant T. Rajendra Prasad for the Respondent JUDGEMENT GodaRaghuram Heard Sri.V.GopalakrishnaGhokhale, learned Counsel for the appellant and Sri.T.Rajendra Prasad for the respondent. This appeal under Section 35-G of the Central Excise Act, 1944 is presented against the order of the Customs, Excise and Service Tax Appellate Tribunal, South Zonal Bench, Bangalore (for short 'the Tribunal') dt.18.4.2011 whereby the application of the respondent bearing No. ST/St/478/09 was allowed and waiver of pre-deposit granted.The substantive appeal presented before the Tribunal by the respondent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e in any appeal under this Chapter, the decision or order appealed against relates to any duty demand in respect of goods which are not under the control of Central Excise authorities or any penalty levied under this Act, the person desirous of appealing against such decision or order shall, pending the appeal, deposit with the adjudicating authority the duty demanded or the penalty levied. Provided that where in any particular case, the Commissioner (Appeals) or the Appellate Tribunal is of opinion that the deposit of duty demanded or penalty levied would cause undue hardship to such person, the Commissioner (Appeals) or, as the case may be, the Appellate Tribunal, may dispense with such deposit subject to such conditions as he or it m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dispensing with the pre-deposit without imposing any conditions.This Court also ruled that the order of the Tribunal cannot be sustained, despite the offer of the assessee to deposit 5.00 crores as a pre-condition for continuing the stay. Eventually, the matter was remanded to the Tribunal for a de novo consideration in the light of the principles contouring to the exercise of discretion to grant stay, set out in the Judgement in C.E.A.No. 301 of 2010. After the de novo exercise, on remand by this Court, the Tribunal passed the impugned order dt.18.4.2011 again granting blanket waiver of pre-deposit.The Tribunal recorded reasons for doing so as under: Be that as it may, we find that the appellant herein had failed to bring to the n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and also keeping in mind the direction of the Hon'ble High Court and the fact that the lower authorities have attached property worth Rs. 27 crores and the said attachment has been extended till 3.9.2011. Section 73-C (Chapter-V of the Finance Act, 1994 as amended from time to time) enables provisional attachment of assets in certain cases pending proceedings under Sections 73 and 73-A and where the Central Excise is of the opinion that for the purpose of protecting the interest of the revenue, it is necessary to attach the property without previous approval of the Commissioner of Central Excise. Sub-section (2) of Section 73-C enjoins that such provisional attachment shall cease after expiry of a period of six months from the orders m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al under Section 35-G of the 1944 Act. Sri. Gopalakrishna Gokhale, learned Counsel for the appellant would submit that the interest of the revenue would be safeguarded while balancing the interest of the respondent/assessee if it is directed that 50% of the tax liability, as determinedin Original Order No. 12/2009-S.Tax (Commn'r) dt. 11.6.2009, is directed to be deposited under Section 35-F of the 1944 Act.Sri. Rajendra Prasad, the learned Counsel for the respondent would submit that having regard to the huge quantum of service tax and penalty determined, it would be impossible for the assessee to deposit 50% of the amount and the respondent being an institution running educational institutions would face the prospectus of closure of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the 1944 Act in its appeal preferred under Section 86 of the Service Tax Act. On such deposit, the Tribunal shall entertain the appeal of the respondent preferred against the order of the Commissioner, Customs, Excise and Service Tax, Guntur, dt. 11.6.2009 The learned Counsel for the respondent would contend that the attachment of property of the respondent for recovery of service tax by the Revenue is barred by limitation and in support of this contention he relied on the Judgement of a learned Division Bench of Bombay High Court in Bajaj Auto Limited vs. Union of India. Since the question of limitation is a question of fact under appropriate law, it is always open to the respondent to urge the point of limitation before the Tribunal ..... X X X X Extracts X X X X X X X X Extracts X X X X
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