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2013 (12) TMI 1473 - HC - Service TaxWaiver of pre dpeosit - services of liaisoning and monitoring of movement of coal to the plants of cement manufacturing companies - Assessee applied for surrender of license - Rejection of request - Classification under Business Auxiliary service or clearing and forwarding service - held that:- Where an assessee has a good prima facie case, and the disputed duty and/or penalty has apparently been charged wrongfully, the requirement of pre-deposit of the disputed tax and/or penalty is liable to be waived, since pre-deposit of tax not payable by an assessee, would in itself was hardship to that assessee, as held by this Court in a Bongaigaon Refinery & Petrochem Ltd. v. Collector of Central Excise (A), Cal. reported in [1992 (4) TMI 56 - HIGH COURT AT CALCUTTA]. - Where there is a very good prima facie case, pre-deposit would have to be waived altogether. Where the appellant has an arguable case, pre-deposit might be waived on such conditions as would protect the interest of Revenue. In fact, the Commissioner (Appeals), was conscious of his duty to consider the prima facie case and accordingly recorded a finding that the service rendered was covered under the definition of business auxiliary service. The Commissioner (Appeals), however, did not consider whether the purported demand was barred by limitation. Commissioner (Appeals) has cursorily considered the merits of the case. The learned Tribunal has not at all considered the question of limitation. Admittedly, the demand was not raised within one year but almost after five years by invoking the extended period of limitation. The justification of such invocation has not at all been considered. - The Commissioner (Appeals) has not at all considered whether there was any fraud, misrepresentation or suppression with intent to defraud revenue to justify the invocation of the extended period of limitation. - Moreover, after the writ petition was filed the appeal has been dismissed on 9th April, 2012 without any further notice to the petitioner and without opportunity to the petitioner to make pre-deposit - The impugned order cannot be sustained and the same is set aside and quashed - Decided in favour of assessee.
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