TaxTMI 
TaxTMI 
2015 (12) TMI 1498
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....porated 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 'AAACA4912EST001'. 2.1. The appellant provides services in accordance with the terms and conditions enumerated in the General Sales Agent (GSA) Agreement. The appellant acts as a GSA for passenger air transport services, in the states of Tamil Nadu, Kerala (Cities of Cochin and Trivandrum) and for cargo sales in Tamil Nadu. For the services of GSA, the appellant is entitled to Overriding Commission of 3% on passenger air ticket sales and 2.5% on cargo sales. In respect of passenger air ticket sales, the Saudia issues Agency Credit Memo (ACM) towards the Overriding Commission, due to the appellant, on the sales of each month. The sales are adjusted by the assessee against the money, which has to be remitted to Saudia, towards the direct passenger air ticket sales. The overriding commission is denominated in the Agency Credit Memo, in S....
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....he specific contention of the learned counsel for the appellant is that, under Clause 105 of Section 65 of The Finance Act, 1994, when there is, (a) export of services from India and used outside India, and (b) the payment for services, which is provided under outside India is received by the service provider / assessee, in convertible foreign exchange, it would be exempted from payment of service tax. Pointing out these specific provisions, it is contended by the learned counsel for the appellant that when 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 ca....
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....calculated to interfere with or fetter, if not to impair or imperil, the substantive right. The right that the amended section gives a certainly less than the right which was available before. A provision which is calculated to deprive the appellant of the unfettered right of appeal cannot be regarded as a mere alteration in procedure. Indeed the new requirement cannot be said merely to regulate the exercise of the appellant s pre-existing right but in truth whittles down the right itself and cannot be regarded as a mere rule of procedure". 4.8. Following the Hon 'ble Apex Court decision, cited supra, the High Court of Kerala, in the cases of Jeevan Telecasting Corporation Ltd., CCE, C & ST., Cochin, reported in 2015 (32) ELT (63) and Muthoot Finance Ltd. v. Union of India reported in 2015 (320) ELT 51, had held that, inasmuch as the lis in question had commenced prior to the introduction of the Finance Act, 1994 (with effect from August, 2014), the assessee's right of appeal, as per the erstwhile provision of law, would not be affected by the provisions introduced by the amendment of 2014. 4.9. As per the decision of the Hon 'ble Supreme Court, in the case of Gar....
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....Rs. 20,00,000/- (Rupees twenty lakhs only) within a period of eight weeks from today and make compliance on 29th December, 2015. ...." 6. 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 and that the assessee must be permitted to raise this contention, as it is armed with materials to substantite its claim for financial hardship. 6.1. It appears that, as the assessee was of the strong view that, the assessee has a better case on the issue of liability and perhaps carried away by this view,....