2015 (9) TMI 828 - HC - Central Excise

Waiver of pre deposit - Whether the Tribunal is correct in rejecting the claim of waiver of pre-deposit in the circumstances of the case where the levy is challenged on the ground of merits as well as on the ground of jurisdiction - Held that - Work undertaken by the appellant is to restore waste pits and for this purpose the service providers have to undertake skimming of oily waste, collection, redistribution and transportation of oily and non-oily drilling waste and thereafter restoration and back-filling of the pits with locally available soil. It is evident from this that the main nature of work is to clean the pits by removing oily and non-oily waste completely and thereafter put in fresh soil (back-filling) but not site formation since the drilling site is already existing and the appellant has to clean up all the wastage and bring it back to the original condition. - when a statutory appeal is pending on the file of the Tribunal and any opinion that is expressed by the Tribunal granting interim relief pending disposal of the appeal, is only a prima facie view and not a conclusive one. Therefore, it is always open for the appellant to plead further before the appellate authority to sustain his plea. - Tribunal directed a sum of ₹ 25.00 lakhs to be deposited as a condition precedent in exercise of the power under Section 35-E of the Act would indicate that the Tribunals view expressed on merits is only a prima facie view and the Tribunal would be considering the case on merits at the time of hearing the appeal. - Appeal disposed of.

Summary

Issues:
1. Prima facie case on merits in the appeal before CESTAT
2. Rejection of claim of waiver of pre-deposit by Tribunal
3. Requirement of depositing entire service tax demanded causing undue hardship
4. Imposition of condition of deposit of entire service tax demanded by Tribunal
5. Compliance with guidelines laid down by Hon'ble Court

Issue 1: Prima facie case on merits in the appeal before CESTAT
The appellant filed a Central Excise Appeal against a Stay Order passed by CESTAT, challenging the levy of service tax. The appellant contended that the Tribunal failed to consider the nature of contract works undertaken, which would have negated the need for payment. The appellant argued for a waiver of pre-deposit, citing a strong prima facie case. The respondent, Customs and Central Excise, argued that the appellant must establish a prima facie case, undue hardship, and safeguard revenue interests. The Court noted that the work involved cleaning waste pits, not site formation, and opined that the Tribunal's interim relief was a prima facie view, leaving room for further pleading by the appellant.

Issue 2: Rejection of claim of waiver of pre-deposit by Tribunal
The Tribunal had directed the appellant to deposit a sum as a condition precedent, indicating a prima facie view on merits. The appellant argued that the Tribunal did not properly consider the waiver application due to lack of relevant material. The Court emphasized that the appellant should have presented financial statements before the Tribunal for proper consideration. The appellant was given the opportunity to file relevant financial documents for modification of the Tribunal's order within two weeks, with the Tribunal directed to consider these materials and pass appropriate orders within four weeks thereafter.

Issue 3: Requirement of depositing entire service tax demanded causing undue hardship
The appellant raised concerns about the onerous requirement of depositing the entire service tax demanded, causing undue hardship due to financial constraints. The Court referenced the definition of undue hardship from previous judgments and noted that the appellant should have submitted financial statements to the Tribunal. The Court decided to dispose of the appeal, allowing the appellant to file relevant financial documents for consideration.

Issue 4: Imposition of condition of deposit of entire service tax demanded by Tribunal
The Tribunal imposed a condition of depositing the entire service tax demanded as a condition for admission of the appeal, despite the appellant's strong prima facie case on merits and financial constraints. The Court highlighted that the Tribunal's directive for deposit indicated a prima facie view, with the Tribunal expected to assess the case on merits during the appeal hearing. The appellant was given the opportunity to file relevant financial documents for modification of the Tribunal's order.

Issue 5: Compliance with guidelines laid down by Hon'ble Court
The appellant questioned whether the impugned order aligned with the guidelines set by the Hon'ble Court in a specific case. The Court did not delve into this aspect but focused on the appellant's plea for waiver of pre-deposit and financial hardship. The appellant was directed to submit relevant financial documents for consideration, with the Tribunal instructed to review and pass appropriate orders based on the new material provided.

In conclusion, the High Court of Andhra Pradesh addressed various issues raised in the Central Excise Appeal, emphasizing the need for the appellant to present relevant financial documents for proper consideration of waiver of pre-deposit and financial hardship. The Court allowed the appellant to file such documents for modification of the Tribunal's order, with the Tribunal directed to assess the case based on the new material provided.