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TMI Blog2016 (1) TMI 1064X X X X Extracts X X X X X X X X Extracts X X X X ..... ent / CESTAT, in the Final Order Nos.40606 and 40607 of 2015, dated 01.06.2015 and Final Order Nos.41045 and 41046 of 2014, dated 26.06.2014, respectively. Brief facts:- 2. The appellant is a proprietry firm, engaged in providing transport facility (air, train and road) to various customers. The main activity of the firm is transporting of goods from one place to another. In all cases of transport facility provided to the customers, there is no clause on price / charges for loading and unloading, but the clause was only with reference to freight charges on weight basis. In respect of the transportation of goods, there is no liability to pay service tax. The appellant is liable to pay service tax only in cases, where the appellant had char ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. 200/- per day or 2% per month plus interest. Further penalty Rs.5,000/-" 2.5. As against the Adjudication Order, dated 21.03.2012, the appellant filed an appeal before the CESTAT, along with an application for waiver of pre-deposit of the amount demanded. The first respondent / CESTAT / Tribunal, while considering the Application for Stay, by order in Miscellaneous Order Nos.41045-41048 of 2014, dated 26.06.2014, directed the appellant to pre-deposit Rs. 1,25,00,000/-, within a period of eight weeks and further directed that an amount of Rs. 74,41,994/- already made by the appellant would be taken into account for this deposit, subject to verification by the Service Tax Department. The Assessee wrote a letter, dated 05.08.2014, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lenging the same, C.M.A.Nos.2805 and 2806 of 2015 have been filed. 2.8. During the hearing of the appeals in C.M.A.No.2805 and 2806 of 2015 before this Court, the learned counsel for the assessee submitted that the earlier orders passed by the Tribunal, in Miscellaneous Order Nos.41045-41046 of 2014, dated 26.06.2014, have to be challenged for better adjudication and thereafter, challenging the same, C.M.A.Nos.58 and 59 of 2016 have been filed. 3. As the substantial question of law raised, in all these appeals, are inter-linked and common, common judgment is pronounced. 4. The contention of the learned counsel for the appellant, in all these appeals, is that the Tribunal is not justified in directing the appellant to pre-deposit a sum of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ropriated by the Assessing Officer, by the order, dated 21.03.2012. 9. It was the claim of the assessee that the CENVAT credit available with the Department ought to have been adjusted as against the order of pre-deposit. 10. Despite the request being made, seeking modification of the order of stay, the Tribunal did not consider the same, but only extended the time. When the CENVAT credit was available with the Revenue, which would safeguard the interest, insistence upon the further deposit would cause undue hardship to the appellant and as such, the appellant has established a prima facie case for their claim of waiver of pre-deposit. Though complete waiver cannot be granted, having regard to the demand made by the Department, the Tribun ..... X X X X Extracts X X X X X X X X Extracts X X X X
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