TMI Blog2015 (8) TMI 1009X X X X Extracts X X X X X X X X Extracts X X X X ..... to towers and shelters - Partial stay granted. - Civil Misc. Appeal No. 1236 of 2015, M. P. No. 1 of 2015 - - - Dated:- 3-7-2015 - R. Sudhakar And K. B. K. Vasuki, JJ. For the Appellant : Mr. R Parthasarathy For the Respondent : Mr. A P Srinivas ORDER (Judgment of the Court was delivered by R. Sudhakar,J.) This Civil Miscellaneous Appeal is filed as against the order of the Tribunal ordering pre-deposit raising the following substantial questions of law: 1. Whether in the facts and circumstances of the case, the Appellate Tribunal was correct in ignoring the decisions of this Hon'ble Court being the jurisdictional High Court, but following the decision of the Bombay High Court which is passed without consi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... first issue relating to Cenvat Credit on tower and shelter materials is covered by the decision of the Bombay High Court in the case of Bharti Airtel Vs. Commissioner of Central Excise, Pune reported in 2014 (35) STR 865 (Bom.) and that is justified. Insofar as the second issue relating to input services is concerned, it is stated that the said issue is arguable. We find that on this issue, there appears to be a decision of the Andhrapradesh High Court in the case of Commissioner of Central Excise, Visakhapatnam-II Vs. Sai Sahmita Storages (P) Ltd. reported in 2011 (270) E.L.T.33 (AP). In any event, on this arguable issue, the Tribunal, Ahmedabad Bench had earlier granted waiver of pre-deposit in the case of Navratna S.G.Highway Properties ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ication 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) 2 SCC 436 and CCE v. Dunlop India Ltd., (1985) 1 SCC 260 cases without analysing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iii) It is made clear that the appellant shall make a predeposit of 50% of ₹ 6,65,81,395/- within a period of four weeks from the date of receipt of a copy of this order and the balance 50% shall be made within a period of four weeks thereafter and subject to such compliance, the pre-deposit of balance amount demanded shall remain waived and its collection shall stand stayed during the pendency of the appeal before the Tribunal. 4. It is relevant to note that except the demand raised in this matter, other facts in the present appeal and the one decided by this Court are one and the same and there is no dispute in this regard. The issues raised in this appeal are also no different from the one decided by this Court in C.M.A.Nos.192 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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