TMI Blog2014 (7) TMI 706X X X X Extracts X X X X X X X X Extracts X X X X ..... presented for valuation and it provides for a procedure. Such procedure has not been followed in the instant case. The issue as to whether the back to back agreements entered into between the appellant and the service recipients was a method adopted by the appellant to suppress the value of services is also a question that should be answered in the appeal on considering Section 67(1)(i) of the Finance Act, 1994. The plea of financial hardship has been raised by the appellant before the Tribunal and that has also been recorded in paragraph (8) of the order of the Tribunal. We find much force in the plea of the appellant regarding undue hardship and financial difficulty in pursuing the appeal on payment of the pre-deposit as ordered by the Tribunal. The same, therefore, requires to be modified considering the prima facie case of the appellant. - amount of pre-deposit reduced from ₹ 2.5 crores to ₹ 1 crore only - Decided partly favour of assessee. - C. M. A. Nos. 285 and 1320 of 2014 - - - Dated:- 10-7-2014 - R. Sudhakar And G. M. Akbar Ali,JJ. For the Appellant : Mr. Arvind P. Datar Senior Counsel for Mr. K. Vaitheeswaran For the Respondents : Mr. V. S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rvice tax amount of ₹ 9,38,97,251/- under the category Mining Service for the period from 1.6.2007 to September, 2008. Certain other issues have also been adjudicated, of which we are not concerned in these appeals. Aggrieved by the adjudication order, the appellant filed an appeal before the Tribunal along with an application for waiver of pre-deposit of dues. 4.4. The stand of the appellant before the Tribunal for seeking waiver of pre-deposit for the purpose of hearing the appeal, prima facie, is that the agreement for providing mining services is a specific agreement in respect of the services rendered, for which the value has already been fixed per Ton in respect of various categories of mining products and, therefore, the department is not entitled to take a different value for the purpose of determining the service tax. It is only in cases where there is no receipt of consideration in money either wholly or partly, the question of determination of value by other methods will arise. 4.5. It was pleaded by the appellant before the Original Authority as well as the Tribunal that a specific agreement has been entered into for providing mining services; the value has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Finance Act, 1994, may not be justified. 7. Further, Rule 3(b) of the Service Tax (Determination of Value) Rules, 2006 will come into play only when the value of such taxable service cannot be determined under Rule 3(a) of the Service Tax (Determination of Value) Rules, 2006. Prima facie, there is no cogent reason shown in the order of adjudication as to how Rule 3 of the Service Tax (Determination of Value) Rules, 2006 will come into play when there is a specific agreement for providing services, indicating the value. 8. The reasoning given by the Tribunal that the minerals received back from the service recipient are sold by the appellant for profit and such back to back agreements act as vehicles of undervaluation is an issue which has to be gone into on merits in the appeal considering all issues, including the two agreements. The department has to first come to the conclusion that the provisions of Section 67(1)(i) of the Finance Act, 1994 will not apply to the facts of the present case before proceeding to contend that there is an element of undervaluation. No provision of law under the Finance Act, 1994 or the Service Tax (Determination of Value) Rules, 2006 calls ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hority to pass an order which cannot be sustained on the touchstone of fairness, legality and public interest. Where denial of interim relief may lead to public mischief, grave irreparable private injury or shake a citizen s faith in the impartiality of public administration, interim relief can be given. 9. It has become an unfortunate trend to casually dispose of stay applications by referring to decisions in Siliguri Municipality v. Amalendu Das, (1984) 2 SCC 436 and CCE v. Dunlop India Ltd., (1985) 1 SCC 260 cases without analysing factual scenario involved in a particular case. 10. Section 35-F of the Act reads as follows: 35-F. Deposit, pending appeal, of duty demanded or penalty levied. Where in any appeal under this Chapter, the decision or order appealed against relates to any duty demanded in respect of goods which are not under the control of Central Excise Authorities or any penalty levied under this Act, the person desirous of appealing against such decision or order shall, pending the appeal, deposit with the adjudicating authority the duty demanded or the penalty levied: Provided that where in any particular case, the Commissioner (Appeals) or the Appella ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n has to consider materials to be placed by the assessee relating to undue hardship and also to stipulate conditions as required to safeguard the interests of the Revenue. 12. The plea of financial hardship has been raised by the appellant before the Tribunal and that has also been recorded in paragraph (8) of the order of the Tribunal. We find much force in the plea of the appellant regarding undue hardship and financial difficulty in pursuing the appeal on payment of the pre-deposit as ordered by the Tribunal. The same, therefore, requires to be modified considering the prima facie case of the appellant. The payment already made by the appellant towards tax and the further payment that we are ordering will safeguard the interest of the Revenue as well. 13. For the foregoing reasons and taking note of the fact that the appellant had already paid a sum of ₹ 2.90 Crores towards service tax, we pass the following order: (i) On the question of law raised, we are of the view that the Tribunal was not justified in ordering the pre-deposit in the manner stated in its order dated 4.11.2013; (ii) Consequently, the order of the Tribunal dated 4.11.2013 is modified to the e ..... X X X X Extracts X X X X X X X X Extracts X X X X
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