TMI Blog2013 (7) TMI 235X X X X Extracts X X X X X X X X Extracts X X X X ..... etail at the time of final hearing - From the facts available on record the matter came to light only when the department started investigation into the activities of the appellant. Financial hardship – Held that as per the decision in SQL Star International Ltd. V/s CC, CE and Service Tax Commissionerate (2011 (7) TMI 868 - Andhra Pradesh High Court) - balance of convenience and irreparable loss to Revenue have to be taken into account while considering grant of interim stay. Stay application - assessee directed to make a pre-deposit of 50% of the service tax demand - On submission of the pre-deposit of balance of dues and stayed during the pendency of the appeal. - ST/401/12 - S/447/13/CSTB/C-I - Dated:- 21-3-2013 - P R Chandra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rieved of the same the appellant is before us. 3. The ld. Consultant for the appellant made the following submissions:- 1) The adjudication by the Commissioner is without jurisdiction as the Chief Commissioner of Central Excise does not have the power to delegate the adjudication to the said Commissioner; 2) The transaction is one of sale and purchase of goods and VAT has been paid by the appellant. As per the concessionaire agreement, the products will be sold by the concessionaire to the appellant and the appellant will in turn sell the products to the customers and VAT has been paid on these transactions and therefore, there is no scope for service tax levy. 3) With effect from 1-6-07, they are discharging service tax on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arantee amount or as a percentage of the value of goods sold which clearly indicates that there is no renting of any space and the consideration has no linkage to the area of the space rented. d) The concessionaries use the infrastructural facility provided by the appellant by way of air-conditioned atmosphere, common lighting, security and other facilities. Accordingly he submits that the service rendered by the appellant merits classification under BSS and the appellant be put to terms. 5. We have carefully considered the submissions made by both the sides and have also perused the concessionaire agreement entered into with one of the concessionaires, M/s Luxor Writing Instruments Pvt. Ltd. 5.1 The issue relating to jurisdictio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r own telephone connections, the concessionaires use the Retail Store facility of the appellant which includes a host of common facility for the customers who are visiting the retail mall such as drinking water, toilet, lift/escalator facility for easy movement, common billing and collection facilities in respect of the goods sold, and so on. Customers visit a retail mall because of the variety of goods offered for sale of reputed brands under one roof, the comfortable atmosphere for shopping, facility for small children by way of play area, etc. who accompany the parents, facility for food/beverages etc. by way of food courts, and so on. There is no denial of the fact it is because of these facilities, customers are attracted to Retail Mal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the activities of the appellant. Therefore, it can not be concluded at this stage that there was no suppression of facts on the part of the appellant. 5.6 The appellant has not pleaded any financial hardship. As per the decision of the hon'ble High Court of Andhra Pradesh in the case of SQL Star International Ltd. - 2012 (25) STR 113 (AP). prima facie case, balance of convenience and irreparable loss to Revenue have to be taken into account while considering grant of interim stay. 6. From the foregoing discussion, we have come to the preliminary conclusion that there is no prima facie case in favour of the appellant and there is no financial hardship pleaded. Therefore, the balance of convenience lies in favour of Revenue. Accordingly w ..... X X X X Extracts X X X X X X X X Extracts X X X X
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