TMI Blog2018 (11) TMI 1515X X X X Extracts X X X X X X X X Extracts X X X X ..... is out of proportion to the nature of the requirement itself, and the benefit which the applicant would derive from compliance with it. The other aspect relates to imposition of condition to safeguard the interest of Revenue. This is an aspect which the Tribunal has to bring into focus. It is for the Tribunal to impose such conditions as are deemed proper to safeguard the interests of the Revenue. Therefore, the Tribunal while dealing with the application has to consider materials to be placed by the assessee relating to undue hardship and also to stipulate conditions as required to safeguard the interests of revenue. In view of the decision of Supreme Court in the case of Benara Valves [2006 (11) TMI 6 - SUPREME COURT OF INDIA], the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion was moved with the submission that the assessee was not heard. The Tribunal, thereafter, considered the prayer and passed an order of partial waiver of pre-deposit vide impugned order which led the assessee to file this appeal which was admitted on question of law referred to above. 4. The question of law as framed by this Court is only confined to the consideration that whether the Tribunal, having accepted the plea of undue hardship had discretion or obligation under the law to grant full waiver. Though learned counsel for the appellant could not satisfy this Court on this issue of law that full waiver has to be necessarily granted and no discretion is granted by the Tribunal, learned counsel for the respondents brings to the notic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ommissioner (Appeals) shall, where it is possible to do so, decide such application within thirty days from the date of its filing. 11. Two significant expressions used in the provisions are undue hardship to such person and safeguard the interests of 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 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 suffi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not permissible under the law or that the issue has been decided by the judgment of the jurisdictional High Court or the Supreme Court, claim of full waiver is required to be examined, though briefly and the relevant considerations, one of it being a strong prima facie case, ought not to be ignored. In support of this submission, learned counsel for the appellant places reliance upon on following judgments - I) J.N. Chemical (Pvt.) Ltd. v. CEGAT, 1994 (46) ECC 106 II) Hooghly Mills Company Limited v. Union of India, 1998 SCC OnLine Cal 636 III) Bongaigaon Refinery Petrochem Ltd. v. Collector of Central Excise (A), Cal., 1992 SCC OnLine Cal 405 IV) M/s. Tijiya Steel Pvt. Ltd. anr. v. Union of India and ors., 20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the counsel for the appellant as below - 3. Learned counsel also submits that if the aforesaid para is read, the appellant if at all is liable to tax, it may only be required to pay service tax demand of ₹ 7,03,916/- for the reason of confusion in the interpretation of assessable value of the reimbursed expenses which could not form part of the gross value of taxable services of clearing and forwarding agent services. But penalty is not imposable automatically. If the appellant was pursuing for full waiver, we fail to understand how such submission was made by the appellant before the Tribunal. 7. Learned counsel for the appellant, however, submits that in the interest of justice, he may be granted liberty to raise the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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