TMI Blog2013 (3) TMI 294X X X X Extracts X X X X X X X X Extracts X X X X ..... of a party to pay the pre-deposit amount had to be noticed and the financial burden and undue hardship for the party to resort to claim waiver of the pre-deposit have also to be considered. As decided in Trendy Moods Vs. Customs, Excise and Gold (Control) Appellate Tribunal, Chennai (2008 (12) TMI 215 - HIGH COURT OF JUDICATURE AT MADRAS the capacity of the appellant therein to pay the amount having been noticed and in the absence of any financial burden, it cannot be construed that there is an undue hardship for the appellant therein to resort to claim waiver of pre-deposit. In this case, a sum of ₹ 38,99,288/- as service tax, with interest, penalty, etc., were levied by the original authority, and thereafter, in the appeal stage ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -Deposit-cum-Appeal Order No.43/2012 (M-ST(PD)), dated 18.1.2013, whereby and whereunder, the authority has decided that for taking up the appeal, the pre-condition for depositing the entire amount of ₹ 38,99,288/- towards service tax, with interest, penalty, etc., had been reduced to ₹ 19,50,000/- under Section 35-F of the Central Excise Act (hereinafter referred to as 'the Act') made applicable to the Service Tax as per Section 83 of the Finance Act and the balance amount was waived, is called in question, seeking to quash the same as arbitrary and illegal. 3. According to the petitioner-Company, they are engaged in the business of structural glazing and registered with the Service Tax Department, vide Registration ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etition. The petitioner could not send their official for the personal hearing on 18.1.2013, and accordingly, their counsel requested to have the personal hearing after four weeks. However, the first respondent passed the impugned order, dated 18.1.2013, in Pre-Deposit-cum-Appeal Order No.43/2012 (M-ST(PD)) (in A.No.473/2012 (M-ST)), thereby directing the petitioner to pay the amount of ₹ 19,50,000/- as pre-deposit in cash on or before 8.2.2013 under Section 35-F of the Act, made applicable to Service Tax as per Section 83 of the Finance Act and the balance was waived. The impugned order is challenged by the petitioner on the ground that there was no hearing of the stay petition and the request for adjournment of the personal hearing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... complex services . The petitioner also paid service tax under erection, commissioning or installation as per Section 65(39a) of the Finance Act, 1994 and availed abatement of 67% as per Notification No.1/2006, dated 1.3.2006 and also paid service tax on 33% of the total contract value. A show cause notice, dated 19.8.2009 was issued to the petitioner, denying the benefit of abatement of 67%, and thereafter, the matter was contested by the parties and adjudication was made and the original authority passed the order on 23.8.2012 in Order-in-Original No.19/2012, levying service tax, interest, penalty, etc., against which, the petitioner filed appeal before the first respondent, which is pending. The condition for taking up the appeal is th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s an undue hardship for the appellant therein to resort to claim waiver of pre-deposit. 12. The cardinal principle of consideration of the waiver of pre-deposit is based on undue hardship, prima-facie case, balance of convenience, financial burden and other difficulties expressed by the party before taking the matter on appeal and these factors have to be weighed in relevant circumstances, taking into account all the material facts, which alone can come to the wisdom of the authority to give certain waiver of pre-deposit to the party who is on appeal. 13. In this case, a sum of ₹ 38,99,288/- as service tax, with interest, penalty, etc., were levied by the original authority, and thereafter, in the appeal stage, the petitioner wa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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