TMI Blog2014 (9) TMI 343X X X X Extracts X X X X X X X X Extracts X X X X ..... ute is the difference of ₹ 26.38 crores. Held that:- CESTAT, while passing the impugned order of pre-deposit, considered all the facts and figures in proper perspective and also took into account, the prima facie case, undue hardship, balance of convenience and the financial burden of the petitioner and observed that the case of the petitioner is a matter of expediency and it was of the prima facie view that the Service Tax authorities have every right to look into the issue as to whether the value has been correctly split and also observed that the lower authority has not looked into the same at any stage, because adequate documents other than payment of VAT have not been placed before the lower authority, as the issue had been a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d in construction activities, both residential, complexes and commercial and industrial complexes. During the period from August, 2005 to March, 2009, they have not paid appropriate Service Tax on certain projects executed by them, and therefore, the respondent-authorities demanded Service Tax in respect of two projects, namely Meadows Residential and Pacifica Commercial , indicating the taxable value and Service Tax as follows : Sl. No. Project Name Taxable Value (Rs.) Service Tax demanded (Rs.) 1 Meadows-Residential 64,53,73,079 67,02,463 2 Pacifica-Commercial ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ores), as against which, the petitioner claims that the value of service (inclusive of value of input service) is only ₹ 35 crores and the genesis of the dispute is the difference of ₹ 26.38 crores, though either side did not focus on that issue so clearly, and therefore, it observed that the defect in arriving at the difference because of the two figures, is not for same components of costs and is on approximation basis only, based on which, the additional liability on account of dispute about the project cannot he prima facie more than about ₹ 6.2 crores (Rs. 3.26 crores being tax on ₹ 26.38 crores plus the Cenvat credit of ₹ 2.93 crores, which cannot be availed if average abatement of 67% is availed). The CE ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... into closely during the final, hearing of the appeals. 6. Ultimately, by the impugned order dated 7-2-2013 in Misc. Order Nos. 40341/2013 and 40312/2013 in ST/S/499 500/2012 in ST/607 608/2012, the first respondent-CESTAT ordered to pre-deposit of ₹ 67 lakhs on account of Meadows Project and ₹ 183 lakhs on account of Pacifica Project, totalling ₹ 2.5 crores, as a condition for admission of the appeals and accordingly, the petitioner was directed to make such deposit within five weeks and report compliance on 23-3-2013. The CESTAT also observed that subject to such pre-deposit there shall be waiver of requirement of pre-deposit of balance dues for admission of the appeals and its collection stayed during the pendenc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the amount, based on which, the CESTAT considered the prima facie case of the petitioner, the balance of convenience, the undue hardship and the financial burden of the petitioner and came to the conclusion of ordering pre-deposit, which cannot be said to be arbitrary. 9. I have heard the learned counsel appearing for the parties and perused the material documents available on record. 10. Law is well-settled that the capacity of a party to pay the pre-deposit amount had to be noticed. The cardinal principle of consideration of the waiver of pre-deposit is based on undue hardship, prima facie case, balance of convenience, financial burden and other difficulties expressed by the party before taking the matter on appeal and these factors ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ue had been argued more on question of law, rather than question of fact before the lower authority and it has also been highlighted before the CESTAT for stay and ultimately, the CESTAT passed the impugned order of pre-deposit. 13. Considering the facts and circumstances of the case and the submissions made by the learned counsel appearing for the parties, as far as the amount of pre-deposit ordered by the first respondent-CESTAT at ₹ 67 lakhs in respect, of Meadows Project is concerned, the same is accepted by the petitioner, and hence, no interference is called for. As far as the pre-deposit ordered by the first respondent-CESTAT at ₹ 183 lakhs in respect of Pacifica Project is concerned, the same is disputed by the petiti ..... X X X X Extracts X X X X X X X X Extracts X X X X
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