2015 (1) TMI 947 - HC - Service Tax

Waiver of pre deposit - Held that - issue as to the leviability of Service Tax is before the Hon ble Supreme Court. - until and unless the Supreme Court decides striking down this portion of law the statute has to be operated. We therefore dismiss the appeal. However time to comply with the order of the learned Tribunal is extended for a period of one month from date. We make it clear that all findings recorded at the prima facie stage by the learned Tribunal or that of our order will not be binding at the final stage of hearing. - Decided against assessee.

Summary

Issues:
1. Whether the fixed shared agreement constitutes renting of immovable property service for service tax levy?
2. Justification of the Tribunal's decision under Section 35F of the Central Excise Act, 1944.

Issue 1:
The appellant appealed against the Commissioner's order before the Tribunal, seeking waiver of pre-deposit and stay of the order. The Tribunal assessed the prima facie facts and found the case not strong enough for full waiver, thus waiving only 50% of the pre-deposit amount. The appellant failed to establish financial hardship, leading to the requirement of a bank guarantee and the deposit of the remaining 50%. The High Court declined to substitute its assessment, noting no perversity in the Tribunal's decision. The Court found no legal element for consideration and dismissed the appeal.

Issue 2:
The appellant's counsel mentioned the issue of Service Tax levy is pending before the Supreme Court. The High Court highlighted that until the Supreme Court rules on the matter, the law must be followed. Consequently, the appeal was dismissed, but the compliance time with the Tribunal's order was extended by one month. The Court clarified that the prima facie findings by the Tribunal or the High Court would not be binding in the final hearing. The miscellaneous applications were also dismissed without costs.