2018 (11) TMI 1515

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.... the adjudicating authority and Commissioner (Appeals) preferred statutory appeal before the Customs, Excise and Service Tax Appellate Tribunal and also moved an application for waiver of pre-deposit with a plea of undue hardship.   3. Initially, an order was passed against the assessee. Another application was moved with the submission that the assessee was not heard. The Tribunal, thereafter, considered the prayer and passed an order of partial waiver of pre-deposit vide impugned order which led the assessee to file this appeal which was admitted on question of law referred to above. 4. The question of law as framed by this Court is only confined to the consideration that whether the Tribunal, having accepted the plea of undue hard....

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....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 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 Re....

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....e hardship and also to stipulate conditions as required to safeguard the interests of revenue." 5. Learned counsel for the appellant, however, submits that where in a particular case, the assessee is in a position to establish before the Tribunal that even the demand itself was not permissible under the law or that the issue has been decided by the judgment of the jurisdictional High Court or the Supreme Court, claim of full waiver is required to be examined, though briefly and the relevant considerations, one of it being a strong prima facie case, ought not to be ignored. In support of this submission, learned counsel for the appellant places reliance upon on following judgments - I) J.N. Chemical (Pvt.) Ltd. v. CEGAT, 1994 (46) ECC 106 ....

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....the case deserves full waiver or partial waiver of pre-deposit. We are not inclined to go into the aspect for the reason that in para 3 of the order of the Tribunal, the Tribunal has recorded the submission of the counsel for the appellant as below - "3. Learned counsel also submits that if the aforesaid para is read, the appellant if at all is liable to tax, it may only be required to pay service tax demand of Rs. 7,03,916/- for the reason of confusion in the interpretation of assessable value of the reimbursed expenses which could not form part of the gross value of taxable services of clearing and forwarding agent services. But penalty is not imposable automatically." If the appellant was pursuing for full waiver, we fail to understan....