TMI Blog2014 (8) TMI 100X X X X Extracts X X X X X X X X Extracts X X X X ..... iability and, therefore, the said liability need not be fastened on the appellant. But, this Court is of the view that the said issue that has to be considered by the Tribunal only in the appeal. However, the payment of service tax liability by the main contractor, which is a prima facie case, put forth by the appellant, enures to the benefit of the appellant. The order of the Tribunal dated 24.9.2013 is modified to the effect that the appellant shall make a pre-deposit of ₹ 15,00,000/= (Rupees Fifteen Lakhs only) - partly decided in favor of assessee. - C.M.A. No. 3478 of 2013 And M. P. No. 1 of 2013 - - - Dated:- 18-7-2014 - R. Sudhakar And G. M. Akbar Ali,JJ. For the Appellant : Mr. M. N. Bharathi For the Respondent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent or disables and impedes access to a forum, viz., CESTAT, which is meant for redressal of the grievance of an assessee suffering an adverse order and results in rendering the statutory remedy of appeal illusory. 5) Whether the order of the Tribunal inasmuch as it has not even considered nor rendered any finding on the existence or otherwise of 'undue hardship' while exercising its powers to dispense with pre-deposit under Sec.35F of the Central Excise Act suffers from non-consideration of relevant aspect/statutory condition stands vitiated. 6) Whether the Tribunal is right in directing to pre-deposit of ₹ 30 Lakhs for hearing appeal, since the prima facie in the absence of any taxing provision in Section 65 (105) (zzv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lity, it appears that the appellant produced certificate of the principal contractor to the effect that they had discharged the service tax liability. The said stand was not accepted by the original authority on the ground that the liability to pay service tax is on the appellant/assessee and set off, if at all, could be claimed by the principal contractor or the main contractor, as and when service tax liability is discharged by the assessee, the appellant herein. Therefore, the department declined to accept such a procedure adopted in the present transaction and proceeded to impose service tax at ₹ 1,18,39,576/= (Rupees One Crore Eighteen Lakhs Thirty Nine Thousand Five Hundred and Seventy Six only) together with interest under Sect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessee to deposit full or part of the demand. There can be no rule of universal application in such matters and the order has to be passed keeping in view the factual scenario involved. Merely because this Court has indicated the principles that does not give a licence to the forum/authority 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) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ard 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , did not order the entire amount, but has exercised its discretion and ordered pre-deposit of ₹ 30,00,000/= (Rupees Thirty Lakhs only), considering the undue hardship of the appellant. 9. However, insofar as the plea of undue hardship is concerned, specific plea has been taken by the appellant herein in ground (f) and (g) to the effect that the financial position of the appellant company is in dire straits and if pre-deposit as ordered by the Appellate Tribunal is not interfered with, it would result in denial of right of appeal and, therefore, grave hardship and prejudice would be caused to the appellant. 10. This Court, on a consideration of the above plea of financial hardship, deems it fit and proper to modify the order of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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