TMI Blog2014 (6) TMI 546X X X X Extracts X X X X X X X X Extracts X X X X ..... t inviting the counter arguments, the matter cannot be decided, the litigant should be subjected to make pre-deposit to some extent as the learned Commissioner, thinks fit. But, where it is found that there is no absolute debatable case, in those cases, appeals may be allowed to be preferred, but, with the full deposit - to meet the ends of justice, time granted by the learned Commissioner for depositing of the amount of pre-deposit should be extended - Decided partly in favour of assessee. - C/26422/2013-DB, ST/1495/2012-DB, ST/1496/2012-DB, ST/20086/2014-DB, ST/20095/2014-DB, ST/1928/2012-DB, E/27691/2013-DB, ST/28250/2013-DB, ST/28404/2013-DB, E/28534/2013-DB - Final Order. 20470-20479/2014 - Dated:- 7-4-2014 - SHRI B.S.V.MURTHY AND SHRI S.K. MOHANTY, JJ. For the Appellant : Mr. G.H Pradyumna Adv, Mr. M.A Narayana, Consultant, Mr. B.G.Chidananda Urs, Adv, Mr. Y. Sreenivasa Reddy, Adv For the Respondent : Mr. S. Teli,A.R, Mr. N. Jagadish, A.R., Mr. A.K Nigam,A.R JUDGEMENT Per : B.S.V.MURTHY All the stay applications and appeals taken up in this order, have come up before us because the appeals have been rejected on the ground that the appellants did n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Revenue. It thus appears upon careful reading of above paragraph that if a litigant has got strong prima facie case, then the same can be treated within the fold of undue hardship. But, there are no guidelines in which cases and when undue hardship relatable to prima facie case can be perceived. According to us, it depends upon each and every individual case. Without laying down any exhaustive guidelines, we think that following will be useful for adjudicating the application for waiver of full deposit by the Commissioner as well as this Court. i ) If on apparent reading of the matter, it is found that the order impugned is passed patently without having any jurisdiction, meaning thereby, if the authority concerned lacks inherent jurisdiction to pass such order, such a case would be termed to be one of the strongest prima facie case and a litigant should not be subjected to suffer with a condition of pre-deposit in a case of this nature till the disposal of appeal and full waiver would be justified. (ii) When it is found that the impugned order was passed though having jurisdiction but on apparent non-application of appropriate law or mis - application of law, patently ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he appellant. The entire work was done prior to 01.06.2007 and according to the learned counsel, the issue is covered by the decision of the Tribunal in the case of Kala Sagar Vs CST Mumbai [2013(32) STR) 327 Tri-Mum)]. In this case as well as in that case, the work executed was only in a part of the building only. Therefore we agree that the issue is covered by the decision. As regards the remaining portion, we consider that the issue relates to the question as to whether works contract was liable to service tax prior to 01.06.2007 and whether the appellant is eligible for composition scheme or not. Having regard to the fact that the appellant has paid more than Rs. 5,00,000/-, we consider that the amount deposited is sufficient for hearing the appeal. Accordingly, the matter is remanded to the commissioner (Appeals) with a request to decide the appeal on merits without insisting on any further pre-deposit. III Manchukonda Prakasham Industries India Pvt. Ltd. It was submitted that in the case of the very same appellant, for the period from 19/12/2008 to 31/03/2011, this Tribunal had granted complete waiver of pre-deposit and stay against recovery during the pendency of app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t insisting on any deposit and pass an order on merits. VII Shri B. Nagendra Baliga The learned counsel submits that the issue relates to the classification of Spectrometer. The learned counsel submits that the appellant had paid the entire amount of duty and therefore the same may be treated as sufficient. However, we find that the case of the appellant is debatable and it cannot be said that appellant has a prima facie case in their favour especially in view of the fact that there is an allegation of misdeclaration and also there is a finding that appellant had not declared the fact that the Spectrometer imported by them works on X-ray basis. In this view of the matter we consider that appellant should deposit the interest also within eight weeks and report compliance before the Commissioner (Appeals). After such compliance is reported, the Commissioner is requested to hear the appeal without insisting on any pre-deposit towards penalty. VIII Indo fisheries Appeal has been rejected on the ground that appellant had not filed any stay application and had not made payments of all the adjudged dues in accordance with law which requires all the adjudication levies to b ..... X X X X Extracts X X X X X X X X Extracts X X X X
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