TaxTMI 
TaxTMI 
TaxTMI 
2015 (12) TMI 1498
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....d 15.10.2015, passed by the first respondent. By this order, the appellant was directed to deposit a sum of Rs. 20,00,000/-, as a pre-deposit, for filing the appeal, challenging the demand of Rs. 55,11,411/-, as Service Tax payable, on the alleged Overriding Commission (ORC) recieved by the appellant during the period from 01.04.2011 to 31.03.2012. Brief facts:- 2. The appellant is a Company, incorporated under The Companies Act, 1956, and is, inter-alia carrying on business as a General Sales Agent, in respect of Cargo Sales and Passenger Air Transportation, for Saudi Arabian Airline Corporation, Jeddah, (SSA). The Company is registered under the head 'Air Travel Agent Service'. The Service Tax Registration of the company is '....
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....hat the overriding commission, on passenger air ticket sales and cargo sales, is liable to service tax. 3.1. The contention of the assessee / appellant was that the overriding commission, on passenger air ticket sales and cargo sales, does not come under the category of service tax , and it is covered under the expression export of services (Rule 3 (1) (iii) and 3 (2) of The Export Rules, 2005), and hence, the appellant is not liable to pay service tax. The further contention of the assessee was that, as there was no liability, the Revenue cannot demand any interest and penalty, as per Sections 75 to 77 of The Finance Act, 1994. 3.2. Rejecting the contention of the assessee, the Commissioner of Central Excise, directed the assessee to pay....
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....there is no liability at all, to pay the service tax and when the challenge was mainly on liability itself and not on quantum, the order, directing pre-deposit of Rs. 20,00,000/-, by the first respondent herein, is against law and therefore, it is not sustainable. 4.2. The learned counsel for the respondents contended that the order directing pre-deposit of Rs. 20,00,000/- is perfectly justified, as it is mandatory under the amended provisions of Section 35F of The Central Excise Act, 1994 (hereinafter will be referred to as the Act ). 4.3. The first question to be considered is, whether the provisions of Section 35F of the Central Excise Act, 1994, is applicable to the case of service tax also. 4.4. Vide Section 83 of the Finance Act, 1....
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....ection 35F of the Act, only indicates the cut-off date, i.e., 06.08.2014, on or after which pre-deposit is made mandatory to entertain the appeal. But, it is silent with regard to the law applicable to the appeal filed prior to 06.08.2014. The pre-existing right of the appeal cannot be destroyed by the amendment and the right to appeal continues to exist only in terms of unamended provisions of Section 35F of the Act. This issue is well settled by a decision of the Hon 'ble Apex Court, in the case of Hoosen Kasam Data (India) Limited v. State of Madhya Pradesh and Others, (1983) ELT (1277) SC, and the relevant observation reads as under:- "There can be no doubt that the new requirement touches the substantive right of appeal vested in....
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....cision or at the date of filing of the appeal. 4.10. Thus, it is clear that the law applicable to the case of the assessee is the unamended provision of Section 35F of the Act, which reads as under:- "Section 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 (App....
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..... The proviso to Section 35F of the Act enables the appellate authority to dispense with the deposit of duty subject to suitable conditions. The appellate authority is expected to strike a balance between the interest of the Revenue and the assessee's right to have its appeal heard on merits. The order passed clearly go to show that neither the appellate authority has considered the prima facie case of the appellant nor has enquired the financial position of the appellant. No doubt, the assessee had neither pleaded nor placed materials to show that there is undue financial hardship for it. The learned counsel for the appellant would submit that, by mistake, the assessee failed to put forth its contention regarding the financial hardship....