Prima facie case required for unconditional pre-deposit waiver; new plea on appeal justified only partial interim relief.

A 26-day delay in filing the appeal was condoned after the appellant attributed it to handling of papers by counsel's staff and serious illness. On interim relief, the assessee's request for unconditional waiver of pre-deposit and stay of recovery failed because the contention that the construction was for BSNL, and therefore not liable to service tax, was raised for the first time in appeal. A prima facie case for complete waiver was not shown, so unconditional waiver was declined; however, pre-deposit was waived on deposit of Rs. 1 lakh and recovery of the remaining tax, interest and penalties was stayed pending appeal.

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Issues: (i) Whether the delay of 26 days in filing the appeal should be condoned. (ii) Whether the assessee made out a case for unconditional waiver of pre-deposit and stay of recovery.

Issue (i): Condonation of delay

Analysis: The delay was explained by reference to the initial handling of papers by the advocate's staff and the appellant's serious illness, followed by filing after recovery.

Conclusion: The delay of 26 days was condoned.

Issue (ii): Whether the assessee made out a case for unconditional waiver of pre-deposit and stay of recovery

Analysis: The plea that the construction was for BSNL and therefore not liable to service tax was raised for the first time in appeal. On that basis, no prima facie case for complete waiver was found.

Conclusion: Unconditional waiver was declined, but pre-deposit was waived to the extent of the balance liability on deposit of Rs. 1 lakh, and recovery of the remaining tax, interest and penalties was stayed pending the appeal.

Final Conclusion: The appeal was permitted to proceed after condoning delay, while interim relief was granted only on a conditional and partial basis.

Ratio Decidendi: A party seeking unconditional stay or waiver of pre-deposit must establish a prima facie case at the threshold, and a new plea raised for the first time in appeal may justify refusal of complete waiver.

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