TaxTMI 
TaxTMI 
2014 (12) TMI 835
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....ucation Cess) to the tune of Rs. 22,86,777.00 not paid by the Noticee, should not be demanded and recovered under proviso to Section 73 (1) of Finance Act, 1994. (ii) interest at applicable rates, on the Service Tax not paid, should not be demanded and recovered under Section 75 of Finance Act, 1994. (iii) penalty should not be imposed upon them under Section 76 of Chapter V of Finance Act, 1994 for contravention of provisions of Section 68 ibid. read with Rule 6 of Service Tax Rules, 1994. (iv) Penalty should not be imposed upon them under Section 78 of Chapter V of Finance Act, 1994 for suppressing the facts and value of taxable service in contravention of provisions of Section 68 ibid. read with Rule 6 of Service Tax Rules, 1994. (v) Penalty should not be imposed upon them under Section 77 of Chapter V of Finance Act, 1994 for contravention of provisions of Section 69 ibid. read with Rule 4 of Service Tax Rules, 1994. (vi) Amount of late fee should not be demanded and recovered under Rule 7 (C) of Service Tax Rules, 1994 read with Section 70(1) of Chapter V of the Finance Act, 1994 for contravention of Rule 7 of Service Tax Rules, 1994 read with Section 70 ibid. The appell....
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....ingly, passed the following order. "1. I confirm the amount of Rs. 22,86,777/- (Rupees Twenty Two Lakh Eighty Six Thousand Seven Hundred Seventy Seven Only) of Service Tax which shall be demanded and recovered under proviso to Section 73 (1) of Finance Act, 1994 from M/s Ghambhir Construction Co., 156, Rabindrapalli, Faizabad Road, Lucknow; 2. Interest at the applicable rate on the amount mentioned in para 1 above shall be recovered under Section 75 of the Finance Act, 1994 from M/s Ghambhir Construction Co., 156, Rabindrapalli, Faizabad Road, Lucknow. 3. I impose a penalty @ Rs. 100/- per day (up to 17.04.2006) and Rs. 200/- per day thereafter, for the period during which such failure continues or at the rate of two percent, of such tax, per month, whichever is higher, starting with the first day after the due date till the date of actual payment of the outstanding amount of Service Tax, under Section 76 of the Finance Act, 1994, till the date of deposit of Service Tax by the Party, subject to the condition that the penalty under this Section does not exceed the amount of Service Tax involved. The penalty liability is to be computed by the Assistant Commissioner/ Deputy Commiss....
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....d of four months from the date of filing of the appeal. Thereafter, the appellant preferred the appeal before the Customs and Central Excise and Service Tax Appellate Tribunal, New Delhi along with the stay application. An application under Section 35F of the Act, 1944 was also filed making a prayer for waiver of the condition of pre-deposit on the ground that having a prima facie case, insistence of pre-deposit of any part of the duty and penalty imposed, would cause undue hardship and irreparable loss. The appellate Tribunal vide order dated 16.09.2014 impugned in this appeal finding that appellant did not have any prima facie case in its favour so as to dispense with the condition of the pre-deposit of the outstanding demand, dismissed the application for waiver directing the appellant to deposit the entire duty along with interest and penalty within a period of four weeks from the date of the order and to report compliance by 24.10.2014 when the appeal was to be taken up for final disposal subject to ascertaining compliance. By virtue of Section 83 of Chapter V of the Act, 1994, the provisions of Finance Act, 1944 has been made applicable to the Service Tax, as they apply in r....
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....hether the case of waiver has been made out after examining the issues and condition/situation. This question is no longer res integra and has been examined and is being examined by the Courts everyday. Delhi High Court in the case of Sri Krishna Vs. Union of India, 1998 (104) E.L.T. 325 (Del.), has observed as under. "8. Mr. M.L. Bhargava, the learned Counsel for the respondent submitted that the impugned order being a discretionary order is not liable to be interfered with in exercise of writ jurisdiction of this Court. He relied on the decision of the Supreme Court in S.I. Coir Mills Vs. Addl. Collector, Customs, AIR 1976 SC 1527 and Oswal Weaving Factory Vs. State of Punjab, AIR 1966 Punjab 532. Suffice it to observe that while disposing of an application under Section 129 of the Customs Act, 1962 the Tribunal is obliged to adhere to the question of undue hardship. The order of the Tribunal should show if the pleas raised before it, have any merit prima facie or not. If the appellant has such a prima facie strong case as is most likely to exonerate him from payment and still the Tribunal insists on the deposit of the amount it would amount to undue hardship." A Division Ben....
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....g the appellant to deposit the duty demanded and the penalty levied would cause undue hardship to the appellant. Reference may be made to the decision of Karnataka High Court in the case of B.P.L. Sanyo Utilities and Appliances Ltd. Vs. Union of India, 1999 (108) E.L.T. 621, Calcutta High Court in the case of J.N. Chemical (Pvt.) Ltd. Vs. CEGAT, 1991 (53) E.L.T. 543 (Cal.), Madras High Court in the case of Andhra Civil Construction Company Vs. CEGAT, 1992 (58) E.L.T. 184, Allahabad High Court in the case of Hindustan Ferro & Industries Ltd. Vs. CESTAT, New Delhi, 2006 (205) E.L.T. 153 (All). For a good or strong prima facie case, it is not necessary for the appellant to satisfy the tribunal that his case is foolproof and is bound to succeed. Strong prima facie case would mean that the case is an arguable one and fit for trial, or prima facie covered by a binding precedent. In such a situation, the tribunal is under a legal obligation to consider the application of waiver taking into account the undue hardship which would require examination of prima facie case, on merits. In view of above exposition of law, the argument advanced on behalf of the appellant has no force. Admittedl....