2014 (6) TMI 546 - AT - Service Tax

Waiver of pre deposit - Undue hardship - uidelines for considering the requirement of pre-deposit - Held that - if a litigant has got strong prima facie case, then the same can be treated within the fold of undue hardship. But, there are no guidelines in which cases and when undue hardship relatable to prima facie case can be perceived. According to us, it depends upon each and every individual case. Without laying down any exhaustive guidelines, we think that following will be useful for adjudicating the application for waiver of full deposit by the Commissioner as well as this Court - When it is found that the impugned order was passed though having jurisdiction but on apparent non-application of appropriate law or mis - application of law, patently contrary to Supreme Court decision or High Court decision on identical issue which has reached finality, it will also be a strongest case where full waiver be justified. In cases where it is found that there has been an arguable case, apparently, without inviting the counter arguments, the matter cannot be decided, the litigant should be subjected to make pre-deposit to some extent as the learned Commissioner, thinks fit. But, where it is found that there is no absolute debatable case, in those cases, appeals may be allowed to be preferred, but, with the full deposit - to meet the ends of justice, time granted by the learned Commissioner for depositing of the amount of pre-deposit should be extended - Decided partly in favour of assessee.

Issues:
1. Whether the appellants fulfilled the conditions of stay orders.
2. Consideration of guidelines for pre-deposit requirement.
3. Case analysis for Akshaya Women's Welfare Society.
4. Case analysis for M/s Divya Chemicals & Anti Corrosives Pvt. Ltd.
5. Case analysis for Manchukonda Prakasham Industries India Pvt. Ltd.
6. Case analysis for Erehwon Innovation Consulting Pvt Ltd.
7. Case analysis for M/s Petals.
8. Case analysis for M/s Raju Electrical Works.
9. Case analysis for Shri B. Nagendra Baliga.
10. Case analysis for Indo Fisheries.
11. Case analysis for Winmark Services.
12. Case analysis for Hindustan Therapeutics Pvt. Ltd.

1. Fulfillment of Stay Orders:
The judgment addressed cases where stay applications and appeals were taken up due to rejection based on non-fulfillment of stay order conditions. The Tribunal found it appropriate to pass a common order after hearing all appellants and department representatives.

2. Guidelines for Pre-deposit Requirement:
The judgment discussed guidelines from a High Court decision for considering pre-deposit requirements, emphasizing undue hardship and conditions to safeguard Revenue interests. It highlighted scenarios where full waiver or partial pre-deposit might be justified based on the strength of the prima facie case.

3. Akshaya Women's Welfare Society:
The case involved service tax demand for manpower supply service. The Tribunal found a prima facie case in favor of the appellant, remanding the matter to the Commissioner (Appeals) for hearing without insisting on pre-deposit.

4. M/s Divya Chemicals & Anti Corrosives Pvt. Ltd.:
The issue related to anti-corrosive works and service tax liability. The Tribunal considered the amount deposited sufficient for hearing the appeal, remanding the matter for a decision on merits without further pre-deposit.

5. Manchukonda Prakasham Industries India Pvt. Ltd.:
The Tribunal granted complete waiver of pre-deposit based on a previous order for the same appellant, directing the Commissioner (Appeals) to hear the appeal without any pre-deposit requirement.

6. Erehwon Innovation Consulting Pvt Ltd.:
The issue revolved around whether certain reimbursable expenses should be included in the assessable value for service tax. The Tribunal remanded the matter for hearing without additional pre-deposit due to the arguable nature of the issue.

7. M/s Petals:
Similar to Akshaya Women's Welfare Society, the Tribunal directed the Commissioner (Appeals) to hear the appeal without any further pre-deposit, considering the issue at hand.

8. M/s Raju Electrical Works:
The Tribunal found a prima facie case in favor of the appellant regarding manpower supply service exemption, remanding the matter for a hearing without pre-deposit.

9. Shri B. Nagendra Baliga:
The issue involved the classification of a Spectrometer. The Tribunal considered the case debatable and required the appellant to deposit interest within a specified period before hearing the appeal without pre-deposit towards penalty.

10. Indo Fisheries:
The appeal was rejected for failure to file a stay application and deposit adjudged dues. Following a precedent decision, the matter was remanded for a fresh decision after filing a waiver application.

11. Winmark Services:
The Tribunal remanded the matter for a fresh decision as the appellant's request for waiver of pre-deposit was not considered, directing the Commissioner (Appeals) to decide after giving a hearing opportunity.

12. Hindustan Therapeutics Pvt. Ltd.:
The appellant sought a direction for a merit-based order after not fulfilling the terms of the stay order. The Tribunal emphasized providing a reasonable opportunity for the appellant to present their case before deciding on pre-deposit requirements.

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