TMI Blog2014 (5) TMI 135X X X X Extracts X X X X X X X X Extracts X X X X ..... ble private injury or shake a citizens' faith in the impartiality of public administration, interim relief can be given. Two significant expressions used in the provisions are "undue hardship to such person" and safeguard the interest of revenue" Therefore, while dealing with the application twin requirements of considerations i.e. consideration of undue hardship aspect and imposition of conditions to safeguard the interest of Revenue have to be kept in view - For a hardship to be 'undue' it must be shown that the particular burden to have to observe or perform the requirement is out of proportion to the nature of the requirement itself, and the benefit which the applicant would derive from compliance with it - The word "undue" adds something more than just hardship. It means an excessive hardship or a hardship greater than the circumstances warrant - Decided against assessee. - SPECIAL CIVIL APPLICATION NO. 18003 of 2013 - - - Dated:- 12-12-2013 - M.R. SHAH AND MR. R.P.DHOLARIA, JJ. Mr. Jigar Shah for Mr. Anand Nainawati for the Petitioner JUDGMENT M.R. Shah, J. 1. By way of this petition under Article 226 of the Constitution of India, the petitioner he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iver of service tax demand of ₹ 53,06,046/- and with respect to the balance demand/service tax duty liability, the learned CESTAT has directed the petitioner to deposit a sum of ₹ 25 lakh as pre-deposit and on such deposit there will be no recoveries of the balance amount and penalties till the disposal of the said appeal. 2.2 Feeling aggrieved and dissatisfied with the impugned order passed by the learned CESTAT directing the petitioner to make deposit of ₹ 25 lakh as pre-deposit, the petitioner has preferred the present Special Civil Application. 3. Shri Jigar Shah, learned advocate appearing on behalf of the petitioner has vehemently submitted that as such petitioner is not liable to pay any service tax. It is submitted that majority of the demand is for construction under Jawaharlal Nehru National Urban Renewal Mission and for M/s. Gujarat State Police Housing Corporation Ltd. and Surat Municipal Corporation and therefore, they are not liable to pay the service tax on the same. It is submitted that in the similar set of facts and circumstances, the learned CESTAT granted the complete stay in the application of M/s. Khurana Engineering Ltd. It is submitte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e learned CESTAT nor even before this Court, the petitioner - original appellant has pleaded any financial hardship and/or undue hardship. It is required to be noted that issue involved in the present petition is with respect to pre-deposit/waiver of condition as to pre-deposit under Section 35 F of the Central Excise Act, 1944 [hereinafter referred to as the Act ] in an appeal preferred before the CESTAT. Identical question came to be considered by the Division Bench of this Court in the case of Explosion Proof Electrical Control v. CCE C 2012 (2) GLR 1673 and in the said decision the Division Bench has considered the decision of the Hon'ble Supreme Court in the case of Mehsana Dist. Co-op. Milk P.U. Ltd. (supra) and considering the aforesaid decision of the Hon'ble Supreme Court, it is observed that twin requirements at the time of directing pre-deposits under Section 35F are; (a) undue financial hardships of the party; (b)safeguarding interest of revenue. 7. In the case of Benara Valves Ltd. (supra), the Hon'ble Supreme Court has carved out following principles for staying or dispensing with pre-deposit thus: 6. Principles relating to grant of st ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 may deem fit to impose so as to safeguard the interest of revenue : Provided further that where an application is filed before the Commissioner (Appeals) for dispensing with the deposit of duty demanded or penalty levied under the first proviso, the Commissioner (Appeals) shall, where it is possible to do so, decide such application within thirty days from the date of its filing 11. Two significant expressions used in the provisions are undue hardship to such person and safeguard the interest of revenue Therefore, while dealing with the application twin requirements of considerations i.e. consideration of undue hardship aspect and imposition of conditions to safeguard the interest of Revenue have to be kept in view. 12. As noted above there are two important expressions in Section 35(f). One is undue hardship. This is a matter within the special knowledge of the applicant for waiver and has to be est ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etitioner - original appellant has not made out a prima facie case of complete waiver. 9. While passing order under Section 35F of the Act and/or order for staying or dispensing with the pre-deposit, the learned CESTAT is not expected to consider the submissions on merits in detail and give its findings in detail at that stage. While passing order under Section 35F of the Act of staying or waiver of pre-deposit, the learned CESTAT is required to consider the aforesaid principles carved out by the Hon'ble Supreme Court in the case of Benara Valves Ltd (supra), more particularly, with respect to undue hardship/financial hardship, if any alleged and prima facie case for waiver of full amount of pre-deposit. If at this stage, any findings in detail are given by the learned CESTAT on merits, the learned CESTAT will be accused of pre-judging the appeals. Therefore, the contention on behalf of the petitioner that all the submissions made on behalf of the petitioner - original appellant on merits are not dealt with and considered in detail and there are no findings on merits and therefore, impugned order of pre-deposit of ₹ 25 lakh only is required to be quashed and set aside, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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