TMI Blog2014 (7) TMI 707X X X X Extracts X X X X X X X X Extracts X X X X ..... rdering the pre-deposit in the manner stated in its order - Order modified to the effect that the appellant shall make a pre-deposit of ₹ 15,00,000 - stay order modified. - C.M.A. NOS. 1868 TO 1870 OF 2014 AND M.P. NOS. 1 OF 2014 - - - Dated:- 10-7-2014 - R. Sudhakar And G. M. Akbar Ali,JJ. For the Appellant : Mr. K. Magesh For the Respondent : Mr. V. Sundareswaran for R2 JUDGMENT (Delivered by R. Sudhakar, J.) The present appeals have been filed by the assessee against the order of the Customs, Excise and Service Tax Appellate Tribunal, Chennai, wherein direction was given to the appellant to pre-deposit ₹ 30,00,000/-(Rupees Thirty Lakhs only) for the purpose of hearing the appeal. In these appeals, the following substantial questions of law are raised: 1. Whether the tribunal was correct in recording the finding that the service of supply of coffee at a fixed price dispensed through the vending machines to the employees of company at their premises undertaken by the appellant has a predominant element to hold that the appellant failed to make out a prima facie case, by omitting to take proper note of the rulings of the Supreme Court in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ; in terms of Section 65 (24) of the Finance Act, 1994. 3. A show cause notice was issued by the department demanding service tax, which was resisted by the appellant/assessee stating that they are not liable to pay service tax, primarily on the ground that it is not an outdoor caterer or caterer within the definition as above and that the transaction in question suffered Value Added Tax (VAT) and, therefore, the benefit of notification No.12/2003 -ST dated 20.6.03 is available to them. Therefore, service tax, as demanded by the department is, prima facie, not maintainable 4. The adjudicating authority came to the conclusion that this notification will not apply to the facts of the present case as supply of coffee, tea and beverages to the company and its employees was on contract basis and it is only a service rendered and not a sale and the demand for service tax was upheld. 5. On appeal, in application filed for waiver of pre-deposit, the Tribunal, prima facie, was of the view that the applicant was rendering service to supply coffee to the employees of the company and particularly they appointed a pantry boy for such service. Further, the reference made to the Board ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nst the disputed claim. In this regard, the plea of the appellant relying on the decision of the Supreme Court in Imagic Creative Pvt. Ltd. v. Commissioner of Commercial Taxes, 2008 (9) STR 337 (SC), more particularly paragraph (28) is relevant and the same reads as under: 28. Payments of service tax as also VAT are mutually exclusive. Therefore, they should be held to be applicable having regard to the respective parameters of service tax and the sales tax as envisaged in a composite contract as contradistinguished from an indivisible contract. It may consist of different elements providing for attracting different nature of levy. It is, therefore, difficult to hold that in a case of this nature, sales tax would be payable on the value of the entire contract, irrespective of the element of service provided. The approach of the assessing authority, to us, thus, appears to be correct. 9. At this juncture, it is apposite to refer to a decision of the Supreme Court in Benara Valves Ltd. v. CCE, (2006) 13 SCC 347, wherein it has been held as under: 8. It is true that on merely establishing a prima facie case, interim order of protection should not be passed. But if on a cur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 interests of the 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 interests of the 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 established by him. A mere assertion about undue hardship would not be sufficient. It was noted by this Court in S. Vasudeva v. State of Karnataka, (1993) 3 SCC 467 that under Indian conditions expression undue hardship is normally related to economic hardship. Undue which means something which is not merited by the conduct of the claimant, or is very much disproportionate to it. Undue hardship is caused when the hardship is not warranted by the circumstances. 13. For a hardship to be undue it must be shown that the particular burden to observe or perform the requirement is out of proportion to the natu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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