2014 (5) TMI 135

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....cation of the said show-cause notice, vide OIO dated 28.02.2013, the Commissioner confirmed the demand of service tax of Rs. 2,89,82,752/- along with interest and penalty of like amount. 2.1 Feeling aggrieved and dissatisfied with the OIO passed by the Commissioner, the petitioner preferred an appeal before the learned CESTAT. In the said appeal, the petitioner submitted an application/stay application and prayed for waiver of pre-deposit. It was mainly contended on behalf of the petitioner that they have constructed the houses for the houses for Gujarat State Police Housing Corporation Ltd. and Surat Municipal Corporation. It was submitted that majority of the demand is for construction under Jawaharlal Nehru National Urban Renewal Mission and as per the guidelines issued by the Government of India, Ministry of Urban Development, only Urban Local Body can levy and recovery reasonable user charges with an objective to recover full cost of operation and maintenance or recurring cost and that the houses are not sold to the ultimate occupier and therefore, they are not liable to pay the service tax on the same. The petitioner relied upon the stay order granted by the learned CESTAT i....

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....kh as pre-deposit, which has been passed without considering the prima facie case, deserves to be quashed and set aside. 3.1 Shri Jigar Shah, learned advocate appearing on behalf of the petitioner has heavily relied upon the following decisions of the Hon'ble Supreme Court as well as other High Courts.         1. Benara Valves Ltd. v. CCE [2007] 6 STT 13 (SC)         2. ITC Ltd. v. Commissioner (Appeals), C & CE 2005 (184) ELT 347 (All.)         3. Mehsana Dist. Co-Op. Milk P.U. Ltd. v. Union of India 2003 (154) ELT 347 (SC)        4. Northern Doors (P) Ltd. v. CCE 2005(182) ELT 450 (All.)         5. Sony India Ltd. v. Union of India 2002(144) ELT 294 (Delhi)          6. Ruby Rubber Industries v. CCE 1998 (104) ELT 330 (Cal.) 4. Heard Shri Jigar Shah, learned advocate for the petitioner - original appellant at length. 5. While passing the impugned order, it appears that the learned Tribunal has as such considered the Order in Original to satisfy itself with respe....

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.... prima facie case, interim order of protection should not be passed. But if on a cursory glance it appears that the demand raised has no leg to stand, it would be undesirable to require the assessee to pay full or substantive part of the demand. Petitions for stay should not be disposed of in a routine matter unmindful of the consequence flowing from the order requiring the assessee to deposit full or 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. 9. It has become an unfortunate trend to casually dispose of stay applications by referring to decisions in Siliguri Municipality and Dunlop India Ltd. case (supra) without analysing factual scenario involved in a particular....

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....articular burden to have to observe or perform the requirement is out of proportion to the nature of the requirement itself, and the benefit which the applicant would derive from compliance with it. 14. The word "undue" adds something more than just hardship. It means an excessive hardship or a hardship greater than the circumstances warrant. 17. The Apex Court in the case of Mehsana District Cooperative Milk P.U. Ltd. v. Union of Indina 2003 (154)ELT 347(SC) also considered this issue in the following manner:-              "2. The issue here relates to the order passed by the Commissioner (Appeal), Central Excise and Customs under Section 35F of the Central Excise Act, 1944. By the impugned order, the appellants have been directed to deposit an amount of Rs. 30 lakhs by way of pre-deposit. The reasoning given in support of such order is wholly unsatisfactory. The Appellate Authority has not at all considered the prima facie merits and has concentrated upon the prima facie balance of convenience in the case. The Appellate authority should have addressed its mind to the prima facie merits of the appellants' case and ....