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Issues: (i) Whether the delay in filing the supplementary appeals should be condoned. (ii) Whether pre-deposit of the demanded amount should be waived and recovery stayed during the pendency of the appeal.
Issue (i): Whether the delay in filing the supplementary appeals should be condoned.
Analysis: The main appeal had been filed within the normal period of limitation, and the delay related only to the supplementary appeals.
Conclusion: The delay in filing the supplementary appeals was condoned and the condonation applications were allowed.
Issue (ii): Whether pre-deposit of the demanded amount should be waived and recovery stayed during the pendency of the appeal.
Analysis: The refund of Education Cess had been granted earlier and recovery proceedings were initiated thereafter. The Board circular stated that field formations should not initiate recovery of Education Cess where the whole of Service Tax stood exempted under the notification. On that basis, a strong prima facie case was found in favour of the appellant.
Conclusion: Pre-deposit of the demanded amount was waived and recovery was stayed during the pendency of the appeal.
Final Conclusion: The applications were allowed, the delay in the supplementary appeals was excused, and interim protection against pre-deposit and recovery was granted pending the appeal.
Ratio Decidendi: Where a strong prima facie case is shown, supported by a binding departmental circular, waiver of pre-deposit and stay of recovery may be granted during the pendency of the appeal; delay confined to supplementary appeals may also be condoned when the main appeal is within limitation.
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