2015 (2) TMI 1176 - HC - Service Tax

Waiver of pre-depoist - undue hardship - financial hardship - Held that - We are in disagreement with the finding of the learned Tribunal that financial hardship is not a criteria for considering the prayer for waiver of pre-deposit of Service Tax. It is wrong to hold that only the prima facie case is the criteria in the matter of waiver of pre-deposit. By virtue of Section 86(7) of Service Tax, the provision of Section 35-F of the Central Excise Act is applicable. Order of tribunal set-aside - matter remanded back to decide the issue afresh - Decided in favor of appellant.

Summary

Issues:
1. Failure of the Tribunal to consider financial hardship as a criterion for waiver of pre-deposit of Service Tax.

Analysis:
The judgment in question revolves around the issue of whether the Tribunal erred in not considering financial hardship as a valid criterion for the waiver of pre-deposit of Service Tax. The High Court disagreed with the Tribunal's finding that financial hardship is not a relevant factor in such cases. The Court highlighted the applicability of Section 86(7) of the Service Tax Act, which mandates the Tribunal to follow the same procedure as in the Central Excise Act. Moreover, the Court emphasized Section 35-F of the Central Excise Act, which allows for the waiver of pre-deposit if it would cause undue hardship to the appellant. This provision extends to both penalties and duties. The Court interpreted undue hardship to include financial hardship, especially if the appellant can demonstrate a lack of means.

The Court noted that the Tribunal failed to consider the aspect of financial hardship, as argued by the appellant's counsel. Consequently, the High Court set aside the Tribunal's order and directed the Tribunal to re-examine the application for waiver of pre-deposit, taking into account the materials submitted regarding financial hardship. The Court instructed the Tribunal to provide reasons for its decision on the matter of financial hardship. The High Court mandated that this review process should be completed within one month from the date of communication of the order. Ultimately, the High Court allowed the appeal, emphasizing the importance of considering financial hardship as a valid ground for the waiver of pre-deposit of Service Tax.