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Issues: Whether the amount of pre-deposit directed in the stay order required modification and whether deposit of Rs. 1 crore was sufficient compliance for grant of waiver of the balance and stay of recovery.
Analysis: The Tribunal noted that the earlier stay order had not taken into account the appellant's consistent payment of service tax under Construction of Residential Complex Service, the claim of abatement, and the fact that the demand arose only because the department reclassified the activity as works contract service. It further observed that the appellant had already deposited Rs. 1 crore and that the earlier order had overlooked the claim for abatement despite remand. On that basis, the Tribunal treated the situation as disclosing an error apparent on the face of the record and found it appropriate to modify the pre-deposit requirement.
Conclusion: The Tribunal held that Rs. 1 crore already deposited was sufficient compliance under Section 35F and waived the balance pre-deposit, while granting stay of recovery till disposal of the appeal.
Ratio Decidendi: Where an assessee has already made substantial compliance and the stay order overlooks a material claim such as abatement, the pre-deposit requirement may be modified and the balance waived under the discretionary pre-deposit jurisdiction.
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