TaxTMI 
TaxTMI 
2014 (7) TMI 670
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.... file of the Customs, Excise and Service Tax Appellate Tribunal, South Zonal Bench, Chennai. 2. C.M.A.Nos.1342 to 1345 to 303 of 2014 have been filed under Section 35-G of the Central Excise Act, 1944 challenging the order dated 24.03.2014 made in Misc.Order No.40192 to 40193 of 2014 on the file of the Customs, Excise and Service Tax Appellate Tribunal, South Zonal Bench, Chennai. 3. The substantial question of law raised in C.M.A.Nos.300 to 303 of 2014 is "Whether the Tribunal was justified in not granting waiver of pre-deposit when there is no service received in India so as to attract the provisions of Section 66A of Finance Act, 1994 and Rule 3 of the Taxation of Services (Provided from outside India and Received in India) Rule....
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....ed establishment from which the service is provided or to be provided or has his permanent address or usual place of residence, in a country other than India, and (b) received by a person (hereinafter referred to as the recipient) who has his place of business, fixed establishment, permanent address or usual place of residence, in India, such service shall, for the purposes of this section, be the taxable service, and such taxable service shall be treated as if the recipient had himself provided the service in India, and accordingly all the provisions of this Chapter shall apply: Provided that where the recipient of the service is an individual and such service received by him is otherwise than for the purpose of use in any business o....
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.... was no material evidence to demonstrate and prove that the payment made for the services rendered abroad; but we found from paragraph 2 of the order-in-original, wherein the Revenue's charge itself is that the demand of service tax is made on the amount paid to the foreign service providers for services rendered outside India, which is supported by the investigation conducted by the department. 9. Mr.Arvind P.Datar, learned Senior Counsel appearing for the appellant submits that the Tribunal while considering the plea for waiver of pre-deposit had taken the liquid asset worth of Rs. 39 crores erroneously and there was no material for that. He points out that the profit and loss statement for the year ending 31st March, 2013, shows l....
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....e service tax, which is applicable only if it is received by a person in India. The prima facie finding of the Tribunal, that there was a service received in India, does not appear to be supported by material. 12. The Tribunal has however misconstrued the plea of undue hardship of the appellant on the premise that there are liquid assets to the tune of Rs. 39 crores and ordered pre-deposit of Rs. 1,30,00,000/- within a period of eight weeks. It may true be that there are some liquid assets in the course of business, but the overall financial position of the company is reflected in the profit and loss account, which shows a loss. Therefore, the appellant has established the plea both on prima facie case and undue hardship. 13. At....
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....eads as follows: "35-F. Deposit, pending appeal, of duty demanded or penalty levied. Where in any appeal under this Chapter, the decision or order appealed against relates to any duty demanded in respect of goods which are not under the control of Central Excise Authorities or any penalty levied under this Act, the person desirous of appealing against such decision or order shall, pending the appeal, deposit with the adjudicating authority the duty demanded or the penalty levied: Provided that where in any particular case, the Commissioner (Appeals) or the Appellate Tribunal is of opinion that the deposit of duty demanded or penalty levied would cause undue hardship to such person, the Commissioner (Appeals) or, as the case may be, th....
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....For a hardship to be undue it must be shown that the particular burden 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. 15. The other aspect relates to imposition of condition to safeguard the interests of the Revenue. This is an aspect which the Tribunal has to bring into focus. It is for the Tribunal to impose such conditions as are deemed proper to safeguard the interests of the Revenue. Therefore, the Tribunal while dealing with the application has to consider materi....