TaxTMI 
TaxTMI 
2011 (4) TMI 661
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....aside the stay order passed by this Bench with the specific direction, which is reproduced below:- In our considered opinion, the order of the CESTAT is not in accordance with the law laid down by the Supreme Court. The learned CESTAT failed to focus its consideration on prima facie case, balance of convenience and irreparable loss. It did not consider the aspect of undue hardship which must exist for exercising power under Section 35F of the Central Excise Act. Even assuming that there is hardship, the Tribunal ought not to have granted the order of stay or dispensation of pre-deposit without imposing conditions. For these reasons, we are not able to sustain the impugned order inspite of the offer of the respondent (made through their Counsel) to deposit Rs.5.00 crores (Rupees five crores only) as a precondition for continuing stay. In the result, for the above reasons, we allow the appeal, set aside the impugned order of the CESTAT and remit the matter to enable them to consider the matter afresh in the light of the above summed up principles laid down by the Supreme Court. We request that this exercise shall be completed within a perio....
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....ring the pendency of the proceedings, on 21/2/2011, the office of the Chief Commissioner of Customs & Central Excise had in fact issued a letter indicating that the provisional attachment of the immovable property is done by the CCE&ST vide letter dt. 4/3/2009 is extended for further 6 months i.e. from 4/3/2001 to 3/9/2011. It is his submission that the property which has been attached by the lower authorities in order to safeguard the interest of the Revenue is about Rs.27 crores. It is his submission that recently Hon'ble High Court of Karnataka in the case of United Telecom Ltd. Vs. CC, Bangalore [2010(259) ELT 322 (Kar.)] had clearly settled the law that when there is no liability to pay tax, merely because there is a contrary view in an appeal and the pre-deposit is insisted upon, it would not only cause undue hardship but also cause untold misery to the appellant. It is his submission that the said judgment will be binding on this Bench. He would also draw our attention to the judgment of the Hon'ble Supreme Court in the case of Ravi Gupta Vs. CST, Delhi [2010(20) STR 264 (SC)] and submit that there is no universal rule in such matters and if on cursory glance it appears that....
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....stinguished the facts of the case of the appellant from the case of M/s. Great Lakes Institute relied upon by the appellant. It is his submission that this would indicate that the appellant knew very well that their activity attracts service tax w.e.f. 1/7/2003 under Section 65(105) (zzc) of the Finance Act, 1994. He would rely upon the decision of the Larger Bench of the Tribunal in the case of Agauta Sugar & Chemicals Vs. CCE, Noida [2010(19) STR 849 (Tri. LB)] for the proposition that there may be absence of notice which may involve the procedure but it will not take away the jurisdiction of the officer to initiate action for the recovery of the duty escaped. He would also rely upon the decision of the Hon'ble Supreme Court in the case of CCE, Vizag Vs. M/s. Mehta & Co. 2011-TIOL-17-SC. He relied on the judgment of Hon'ble High Court of Gujarat in the case of CCE, Surat-I Vs. Neminath Fabrics Pvt. Ltd. [2010(256) ELT 369 (Guj.)]. It is his submission that the Hon'ble Supreme Court in the case of Benara Valves Ltd. Vs. CCE [2006(204) ELT 513 (SC)] (as referred by the Hon'ble High Court of Andhra Pradesh) had specifically held that twin requirements of the consideration to be note....
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.... Vs. CST, Ahmedabad 2009-TIOL-214-CESTAT-AHM d) Magnus Society Hyderabad Vs. CC&CE, Hyderabad 2008-TIOL-1812-CESTAT-BANG In the said decisions, this Tribunal has held as under:- a. In Great Lakes Institute of Management Ltd. case, it is held: "The provision of education by an institution will attract service tax only if the institution is a commercial concern. A commercial concern is run with the sole object of making profit. In the case of the appellants, no individual gains any profit by its operations. The MOA clearly spells out that no income earned by the company shall be paid by way of dividend, bonus or otherwise by way of profit to any member of the company or to anybody else through the members. If any surplus remains when the company is wound up, it shall be transferred to another institution run for the same object as the company or for some charitable object. These facts indicate that GLIM is not a commercial concern and therefore, training or coaching rendered by it is not liable to service tax as 'commercial training or coaching'. ....
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....bject of GLIM is to impart education. Profit making is not its main motive. The refrain of the several judicial authorities cited is that profit motive characterizes a commercial concern as against general public utility in the case of a charitable organization. Therefore GLIM is not a commercial concern and the training or coaching provided by GLIM is not a commercial activity. In the view we have taken of the issue on merits we do not consider it necessary to examine the question if the demand is time barred. In the circumstances, we set aside the impugned order and allow the appeal filed by M/s. Great Lakes Institute of Management." b. In ICFAI case, it is held: "Summing up, in our view, (i) the appellants are institutions imparting higher education; (ii) they cannot be brought under the definition of 'Commercial Training or Coaching Centre; (iii) they also confer degrees recognized by law. Various State Governments have recognized the ICFAI University by way of Notification. ....
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....ay to another society or charitable trust engaged in similar activities. In the case of AMA, while the members are expected to contribute towards liability, they do not get any share of the surplus. Members also cannot expect any dividend and in the case of AMA they are expected to contribute every year a certain amount as a membership fee or contribute a certain amount for life membership without any specific returns. All these factors and the memorandum of the association of AMA very clearly show that it is not a commercial concern at all. Further we also find that both the judgments cited by the ld. Advocate and mentioned above clearly are applicable to the present case also. Therefore, we have to hold that AMA is not a commercial concern." d. In Magnus Society Hyderabad case, it is held: "12. Summing up: We are of the view that while deciding whether an institution imparts commercial training or coaching, the totality of the circumstances has to be gone into it. Just because an institution collects fees from the students, one cannot come to the conclusion that it imparts "commercial training or coaching". "Comm....
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....part of the demand. There can be no rule of universal application in such matters and the order has to be passed keeping in view the factual scenario involved. Merely because this Court has indicated the principles that does not give a license to the forum/authority to pass an order which cannot be sustained on the touchstone of fairness, legality and public interest. Where denial of interim relief may lead to public mischief, grave irreparable private injury or shake a citizens' faith in the impartiality of public administration, interim relief can be given." It can be seen from the above reproduced portion of the judgment of their lordships, they have clearly directed the lower courts that merely because the court indicated the principles, that does not give licence to the forum to pass an order which cannot be sustained on the touchstone of fairness, legality and public interest. 10. We find that the Hon'ble Supreme Court in the case of Ravi Gupta (supra), in para-10 have recorded the following:- "10. It is true that on merely establishing a prima facie case, interim order of protection should not be passed. But if on a cursory glance it appears that ....