2015 (8) TMI 748 - HC - Service Tax

Whether the Tribunal can decide the application for waiver of pre-deposit without having a statement of undue hardship, which is concomitant to exercise the jurisdiction - Held that - unless the application is made pleading undue hardship the same cannot be entertained, not to speak of passing any order either adversely or beneficially. This sort of exercise is without jurisdiction. - the impugned judgment and order of the learned Tribunal is set aside and also dismiss the application made - it would be open for the appellant to make a fresh application for waiver of pre-deposit setting up the ground as required under the law - Petition disposed of.

Issues:
1. Whether the Tribunal can decide on the application for waiver of pre-deposit without a statement of undue hardship?

Analysis:
The High Court admitted the appeal based on the substantial question of law regarding the Tribunal's authority to decide on the waiver of pre-deposit without a statement of undue hardship. The Court noted the absence of any statement of undue hardship in the appellant's application before the Tribunal. The Court emphasized the necessity of pleading undue hardship for the application to be entertained, stating that the absence of such a statement renders the exercise without jurisdiction. Consequently, the Court set aside the Tribunal's judgment and order, dismissing the application made by the appellant. However, the appellant was given the opportunity to file a fresh application for waiver of pre-deposit within a fortnight, provided it includes the necessary grounds as required by law. The Court directed the Tribunal to keep the appeal alive for the specified period for the consideration of the fresh application.

The judgment highlighted the importance of including a statement of undue hardship in applications for waiver of pre-deposit before the Tribunal. It emphasized that the absence of such a statement renders the exercise without jurisdiction, leading to the dismissal of the application. The Court's decision to set aside the Tribunal's judgment and order was based on the lack of a crucial element in the appellant's initial application. By allowing the appellant the opportunity to file a fresh application within a specific timeframe, the Court ensured that the appeal could be considered with the necessary grounds as required by law. The directive to the Tribunal to keep the appeal alive for the specified period indicated the Court's commitment to ensuring a fair and proper consideration of the fresh application, free from any influence of the previously dismissed application.

In conclusion, the High Court's judgment focused on the procedural requirement of including a statement of undue hardship in applications for waiver of pre-deposit before the Tribunal. The Court's decision to set aside the Tribunal's judgment and order was based on the absence of this crucial element in the appellant's initial application. By allowing the appellant the opportunity to file a fresh application within a specific timeframe, the Court upheld the importance of following the legal requirements for such applications. The directive to the Tribunal to keep the appeal alive for the specified period underscored the Court's commitment to ensuring a fair and proper consideration of the fresh application, emphasizing the need for compliance with the necessary grounds as required by law.

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