TaxTMI 
TaxTMI 
2014 (9) TMI 37
X X X X Extracts X X X X
X X X X Extracts X X X X
....The facts in a nutshell are as under: The appellant is a proprietorship firm engaged in construction of commercial and residential complexes. On scrutiny of the records of the appellant firm by the Officers of Service Tax Department, it was found that in respect of four projects involving construction of residential complexes as well as commercial complexes, the appellant had not paid appropriate service tax. 2.2. The department issued two show cause notices demanding service tax of Rs. 3,22,42,643/- and Rs. 61,37,445/- respectively, apart from interest and penalty. The appellant submitted his objections and sought for personal hearing. After affording personal hearing, the matter was taken up for adjudi....
X X X X Extracts X X X X
X X X X Extracts X X X X
....the status as a developer and the risk element involved should also be taken into consideration? 4. Whether in the facts and circumstances of the case, the Tribunal was right in ignoring the decision of the Bombay High Court in the case of Maharashtra Chamber of Housing Industry v. Union of India, (2012) 25 STR 305 and the decision of the Gujarat High Court in the case of Commissioner of ST v. Shrinandanagar-IV Co-op Housing Society Ltd., (2011) 23 STR 439, wherein it was held that prior to the amendment to Section 65(105)(zzzh) with effect from 1.7.2010 the service provided by the builder is a self service and not liable to service tax? 5. Whether in the facts and circumstances of the case, the Tribunal was right in ignoring the de....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... reason for the delay in making the pre-deposit and, therefore, the said plea of undue financial hardship should be considered in favour of the appellant. 6. Mr.Vikram Ramakrishnan, learned Standing Counsel appearing for the first respondent acknowledges the payment as above and leaves it to the Court for passing appropriate orders. 7. We find that the order of the Tribunal directing payment of pre-deposit has been duly complied with by the appellant, though belatedly. The Tribunal has dismissed the appeals only on the ground that the conditional order of pre-deposit was not complied with. As on date, the conditional order passed by the Tribunal has been complied with and the interest of the Revenue is safeguarded. Considering....
X X X X Extracts X X X X
X X X X Extracts X X X X
....6 and CCE v. Dunlop India Ltd., (1985) 1 SCC 260 cases without analysing factual scenario involved in a particular case. 10. Section 35-F of the Act reads 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 t....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... which is not merited by the conduct of the claimant, or is very much disproportionate to it. Undue hardship is caused when the hardship is not warranted by the circumstances. 13. 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 ....