TaxTMI 
TaxTMI 
2008 (10) TMI 48
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....ending final decision in the appeal filed by the petitioner against the order of original authority dated 13.11.2007. 3. The impugned order has been passed by the respondent/appellate authority by virtue of powers conferred under Proviso-1 to section 35F of the Central Excise Act, 1944. Under the impugned order, for the purpose of admitting the appeal, the respondent has directed the petitioner to make pre-deposit of entire service tax of Rs.5,92,029/- along with 50% of penalty amount of Rs.7,30,429/- i.e., Rs.3,65,215/- imposed under section 76 of Chapter V of Finance Act, 1994; 50% of the penalty amount of Rs.1,000/-, i.e. Rs.500/- imposed under section 77 of Chapter V of Finance Act, 1994; and 50% of penalty of Rs.7,30,429/-....
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....lty which is equal to the amount of service tax under section 76 of the Act, a similar amount of penalty under section 78 of the Finance Act,1994 apart from imposing penalty of Rs.1,000/- under section 77 of the Finance Act, 1994. 6. Assailing the said order of the original authority, the petitioner has approached the respondent being the appellate authority under section 35F of the Central Excise Act, 1944 and it is, when the matter was argued for admission, the respondent has passed the above said interim order which is impugned in this writ petition. 7. A reference to the impugned order passed by the respondent shows that the petitioner has not raised any point about the financial hardship and even at the time of hearing the appe....
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....and in view of the same, the order has to be set aside. 9. On the other hand, Mr. Rajendra Prasad, learned counsel for the respondent would submit that in the absence of any pleading of undue hardship by the petitioner, there was no occasion for the respondent, appellate authority, to take into consideration the said aspect at all. The law is well-settled that unless hardship is pleaded, there cannot be any presumption of hardship by the appellate authority and therefore, according to the learned counsel for the respondent, the impugned order of the respondent, appellate authority need not be interfered with. His further submission is that it is not correct to state that the petitioner being a builder, has not earned any profit, based on t....
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....so-1 makes it very clear that the Commissioner (Appeals) or the Appellate Tribunal before passing any interim order, shall consider whether the direction for deposit as pre-deposit condition would cause undue hardship to the person against whom such direction is issued. Such a finding is not available in the impugned order of the respondent, nor did the respondent decide the prima facie issue. Section 35F of the Central Excise Act, 1944 is as follows: " Section 35F. 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 ....
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....n passed pending disposal of the appeal in which final adjudication has to be made by the appellate authority as to the correctness of the order of the original authority dated 13.11.2007. Taking into consideration that the construction of Dykes would come under construction service attracting service tax and in respect of which a finding has already been rendered in the order impugned, the appellate authority has to ultimately decide as to whether other contract works are assessable to service tax and that has to be decided at the time of final disposal, in my considered view, to meet the ends of justice, considering the fact that the State Revenue is involved as well as the hardship as put forth by the learned counsel for the petitioner, ....