2013 (3) TMI 357 - HC - Service Tax

Severe hardship - as per the assessee order of confirmation of the impugned demand towards Service Tax with interest and penalty and the impugned order calling upon the petitioner to make pre-deposit amount of ₹ 10 lakhs, is on the higher side - Held that - With regard to the undue hardship and other difficulties expressed by the petitioner, much less what is now claimed, the respondent himself has come to a conclusion while ordering the pre-deposit amount with a lenient approach to reduce it to 10 lakhs to be paid in cash as against ₹ 13,02,384/- ₹ 20,95,992/- towards Service Tax with interest and penalty. Therefore, there is no merit in this writ petition. However taking into account the submissions made by petitioner he shall pay the pre-deposit amount as ordered within a period of two weeks from the date of receipt of a copy of this order, and on such payment, the respondent shall dispose of the appeal itself, on merits and in accordance with law, within a period of four weeks thereafter.

Summary

Issues involved:
Challenge to proceedings under Section 35F Central Excise Act, 1944 read with Section 83 of the Finance Act, 1994.

Detailed Analysis:
The petitioner, a company providing graphics and animation services, entered into an Extended Warranty Agreement with a foreign company for technical support over phone and email based on log file analysis. The petitioner received Show Cause Notices for service tax demand, which were confirmed by the Additional Commissioner of Service Tax. The petitioner appealed against this order, and the respondent ordered a pre-deposit of Rs. 10 lakhs, which the petitioner challenged as causing severe hardship. The respondent argued that pre-deposit is mandatory under the Finance Act or Central Excise Act, and the amount was determined after considering the petitioner's grievances.

The respondent authorities initiated action against the petitioner for non-payment of service tax, resulting in an order for payment of Rs. 13,02,384 + Rs. 20,95,992 towards Service Tax with interest and penalty. The petitioner appealed with a stay petition, leading to the respondent ordering a pre-deposit of Rs. 10 lakhs to be paid in cash by a specified date. The respondent considered factors like the prima-facie case, financial burden, and balance of convenience before issuing the pre-deposit order. The respondent observed that failure to pay the pre-deposit would result in the automatic dismissal of the appeal.

The court noted that the capacity to pay the pre-deposit amount and the financial burden on the petitioner should be considered. A precedent was cited where the court emphasized the importance of assessing undue hardship and financial burden before granting a waiver of pre-deposit. The court reiterated that the waiver of pre-deposit is based on factors like undue hardship, prima-facie case, and balance of convenience, which must be weighed in relevant circumstances. The court found no merit in the writ petition, as the respondent had taken a lenient approach in ordering the pre-deposit.

The petitioner requested additional time to make the pre-deposit payment, which the court granted. The court directed the petitioner to pay the pre-deposit amount within two weeks and instructed the respondent to dispose of the appeal within four weeks of receiving the payment. The court disposed of the Writ Petition with these directions, without imposing any costs.