2013 (4) TMI 374

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....ection 35F Central Excise Act, 1944 read with Section 85 of the Finance Act, 1994 in A.No. 432 of 2011(M-ST) and 627/2012 (M-ST) and quash the same. 3. The case of the petitioner in a nut-shell is as follows:- (a) The petitioner is engaged in supply, erection, installation and commissioning of street lights in the roads/bridges/roads constructed in newly developed airports.   The Department issued show cause notice No: 166/2011 dated 08.04.2011 proposing to impose service tax under the category of erection, commissioning or installation service in terms of Section 65 (39a) of the Finance Act 1994 as amended. (c) The Show Cause Notices were confirmed, vide Order-in-Original Nos.81 and 82 of 2011, dated 02.9.2011 passed by the Ad....

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....p to the petitioner. The respondent has not considered the prima-facie case of the petitioner, capacity to pay the amount, merits of the case and the amount involved. 5. On the other hand, learned counsel for the respondent-Revenue submitted that if any person is aggrieved by the order of the original authority, on appeal, it is mandatory to pre-deposit the amount as per the provisions of the Finance Act or the Central Excise Act as the case may be, and in case there is any hardship, it is for the authority concerned to look into the same. In the instant case, the respondent has taken a lenient view while ordering pre-deposit. 6. It is not in dispute that the respondent-authorities initiated action against the petitioner for non-payment o....

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....sion that the capacity of the appellant therein to pay the amount having been noticed and in the absence of any financial burden, it cannot be construed that there is an undue hardship for the appellant therein to resort to claim waiver of pre-deposit. 8. The cardinal principle of consideration of the waiver of pre-deposit is based on undue hardship, prima-facie case, balance of convenience, financial burden and other difficulties, expressed by the party before taking the matter on appeal and these factors have to be weighed in relevant circumstances, taking into account all the material facts, which alone can come to the wisdom of the authority to give certain waiver of pre-deposit to the party who is on appeal. 9. With regard to the und....