2015 (8) TMI 1010

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....nsidering the pleas of financial hardship raised by the appellant in proper perspective? 3. Whether in the facts and circumstances of the case, the Tribunal was justified in directing the appellant to pre-deposit Rs. 8 crores, being the credit of duty paid on tower parts and shelters and on input services used for erection and installation of towers and shelters? 4. Whether in the facts and circumstances of the case, the Appellate Tribunal was right in holding that the appellant did not make out a prima facie case for total waiver of pre-deposit? 5. Whether in the facts and circumstances of the case, the impugned order of the Tribunal is sustainable in law?" 2. The brief facts of the case are as follows: The appellant is engaged in the services of providing cellular telecommunication service. The appellant availed credit on input services under the category of 'Erection, Installation and Commissioning' and 'Commercial or Industrial Construction', which are used for erecting and installing the towers and cell sites at various places. The appellant also availed credit of excise duty on inputs and capital goods used for providing output service including....

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..... 341 (A.P.). 6. Prima facie, we find that the first issue is no longer in favour of the applicant and the issue no.2 is an arguable matter. In view of the above discussion and considering the submission of both sides and the plea of financial hardships, we direct the applicant to make a pre-deposit of Rs. 8,00,00,000 (Rupees Eight Crores) within a period of eight weeks. Compliance to be reported on 22nd January, 2015." 6. Aggrieved by the order of the Tribunal ordering pre-deposit, the appellant is before this Court. 7. Mr.R.Parthasarathy, learned counsel appearing for the appellant/assessee contended that with regard to the first issue relating to denial of cenvat credit on tower and shelter material, the Bombay High Court in the case of Bharti Airtel Vs. Commissioner of Central Excise, Pune reported in 2014 (35) STR 865 (Bom.) held against the assessee. He relied on the other decisions of the Madras High Court to canvass the issue in favour of the assessee. With regard to the second issue relating to benefit of cenvat credit on input services on erection, commissioning of installation service and construction service, learned counsel relied upon the decision of the Andh....

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....evenue and perused the materials placed before this Court. 11. It is seen that the Tribunal in this case, agreed with the contention of the Revenue that the first issue relating to Cenvat Credit on tower and shelter materials is covered by the decision of the Bombay High Court in the case of Bharti Airtel Vs. Commissioner of Central Excise, Pune reported in 2014 (35) STR 865 (Bom.) and that is justified. Insofar as the second issue relating to input services is concerned, it is stated that the said issue is arguable. We find that on this issue, there appears to be a decision of the Andhrapradesh High Court in the case of Commissioner of Central Excise, Visakhapatnam-II Vs. Sai Sahmita Storages (P) Ltd. reported in 2011 (270) E.L.T.33 (AP). In any event, on this arguable issue, the Tribunal, Ahmedabad Bench had earlier granted waiver of pre-deposit in the case of Navratna S.G.Highway Properties Pvt. Ltd. Vs. Commissioner of service Tax, Ahmedabad reported in 2012 (28) STR 166 (Tri.Ahmd.). Therefore, insofar as the claim of cenvat credit in respect of input services of erection, commissioning or installation service and construction services, the appellant had prima facie case on ....

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....on 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, the Appellate Tribunal, may dispense with such deposit subject to such conditions as he or it may deem fit to impose so as to safeguard the interests of the Revenue: Provided further that where an application is filed before the Commissioner (Appeals) for dispensing with the deposit of duty demanded or penalty levied under the first proviso, the Commissioner (Appeals) shall, where it is possible to do so, decide such application within thirty days from the date of its filing." 11. Two significant expressions used in the provisions are undue hardship to such person and safeguard the interests of the Revenue. Therefore, while dealing with the application twin requirements of considerations i.e. consideration of undue hardship aspect and imposition of conditions to safeguard the interests of the Revenue ha....