TMI Blog2017 (4) TMI 1168X X X X Extracts X X X X X X X X Extracts X X X X ..... or not, in its opinion, deposit of the tax demanded or penalty levied, would cause undue hardship to the appellant, and thus, based on the result of enquiry to determine to what extent waiver of demand, if at all, had to be directed - the Tribunal failed to examine whether or not the Assessee had a prima facie case to seek abatement of tax to the extent of ₹ 61 lakhs or, whether the Assessee could be called upon to pay service tax, vis-a-vis, services rendered on behalf of the main contractor, who had, as indicated above, deposited the tax - appeal allowed - decided in favor of assessee. - C.M.A.No.2081 of 2012 - - - Dated:- 11-4-2017 - MR. RAJIV SHAKDHER VERSUS MR.R.SURESH KUMAR, JJ. For the Appellant : Mr.K.Jayachandran ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of the revenue? 2.Whether the Tribunal is right in directing the appellant to pre-deposit a sum of ₹ 24 lakhs, when the entire demand is time barred and also discharged by the main contractors? 3.Whether in the facts and circumstances of the case, a subcontractor can collect Service Tax and liable to pay the same for the services rendered on behalf of their main contractors, who have paid the Service Tax on the same transactions.? 4.In order to adjudicate upon the questions of law framed in the matter, the following brief facts, are required to be noticed: 4.1.The appellant is a proprietary concern and, is thus, engaged in providing site formation services. The said services are provided by the appellant by leve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ; interest in the sum of ₹ 44,179/-, ought not to be demanded from him under Section 75 of the Act, qua, belated payments of service tax, during the period from October, 2006 to September, 2008; and lastly, penalty ought not to be levied under Sections 76 and 78 of the Act. 7.The appellant preferred a reply dated 12.08.2010, to the said SCN. 7.1.The reply preferred by the appellant, did not, impress the Adjudicating Authority, which led to the Commissioner of Central Excise, passing the order dated 16.09.2011. 7.2.Against the said order, the appellant preferred an appeal to the Tribunal. Along with the appeal, the Assessee, filed an application, for waiver of pre-deposit of duty, interest and penalty, demanded of him. 7.3. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... when, the appeal is adjudicated upon, based on facts obtaining in the instant case. 10.The learned counsel for the appellant says that the order is erroneous in law, as none of the parameters, which had to be applied, while passing an order on an application seeking waiver of pre-deposit were brought into play by the Tribunal. 10.1.Learned counsel says that the Tribunal was required to examine, as to whether or not, the appellant had a prima facie case and more particularly, whether hardship would be caused, if, it was called upon to pay, in the given circumstances, a sum of ₹ 24 lakhs, at this stage of the matter. 10.2.Lastly, the learned counsel submitted that a substantial amount of money towards the demand raised had alr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... when a substantial part of the demand stood deposited with the Revenue. The issue of hardship was not addressed at all by the Tribunal. 14.1. Furthermore, the Tribunal failed to examine whether or not the Assessee had a prima facie case to seek abatement of tax to the extent of ₹ 61 lakhs or, whether the Assessee could be called upon to pay service tax, vis-a-vis, services rendered on behalf of the main contractor, who had, as indicated above, deposited the tax. 15.For all these reasons, we are of the view that the order passed by the Tribunal cannot sustain. Accordingly, the impugned order will have to be set aside. It is ordered accordingly. 16.The questions of law, thus, raised are answered as follows: 16.1.In so far as ..... X X X X Extracts X X X X X X X X Extracts X X X X
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