9911796707
TMI Blog2011 (10) TMI 355X X X X Extracts X X X X X X X X Extracts X X X X ..... Zonal Bench, Bangalore (for short 'the Tribunal') dt.18.4.2011 whereby the application of the respondent bearing No. ST/St/478/09 was allowed and waiver of pre-deposit granted.The substantive appeal presented before the Tribunal by the respondent pertains to its liability to service tax and penalty as determined in Original Order No. 12/2009-S.Tax (Commn'r) dt. 11.6.2009 passed by the Commissioner of Customs, Central Excise and Service Tax, Guntur.By the said order, the Primary Authority determined the service tax liability at Rs. 85,87,52,520/-; and education cess at Rs. 1,50,82,356/-, in allRs. 87,38,34,876/-pertaining to the service provided by the respondent for the years 2003-04 to2005-06, under the proviso to Section 73 (1) of the Fin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al is of opinion that the deposit of duty demanded or penalty levied would cause undue hardship to such person, the Commissioner (Appeals) or, as the case may be, the Appellate Tribunal, may dispense with such deposit subject to such conditions as he or it may deem fit to impose so as to safeguard the interests of revenue. Primarily therefore the requirement of pre-deposit of the service tax liability determined and the penalty levied by the primary assessment order dt. 11.6.2009 is a condition precedent for entertainment of the respondent's appeal by the Tribunal.Proviso to Section 35-F of the 1944 Act however enables the Appellate Tribunal, to dispense with the requirement of pre-deposit subject to such conditions as may be impose ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... exercise, on remand by this Court, the Tribunal passed the impugned order dt.18.4.2011 again granting blanket waiver of pre-deposit.The Tribunal recorded reasons for doing so as under: Be that as it may, we find that the appellant herein had failed to bring to the notice of the Hon'ble High Court or before us when the matter was first heard, as regards the attachment of the property by the lower authorities vide their attachment letter dt. 4.3.2009.It is also seen from the attachment order that the property which has been attached is immovable property and is in the form of land and the value, as worked out by the lower authorities or the authorities by whom the property attached, is approximately Rs. 27.00 crores as on that date.In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tecting the interest of the revenue, it is necessary to attach the property without previous approval of the Commissioner of Central Excise. Sub-section (2) of Section 73-C enjoins that such provisional attachment shall cease after expiry of a period of six months from the orders made under Sub-section (1). Section 73-C empowers the Chief Commissioner of Central Excise, for reasons to be recorded to extend the aforesaid period by such further period or periods of six months, so however that the total period of extension shall not in any case exceed two years.The attachment of the assets of the respondent in this case was ordered on 4.3.2009.In view of the provisions of Section 73-C attachment would, even by the exercise of power conferred o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the respondent would submit that having regard to the huge quantum of service tax and penalty determined, it would be impossible for the assessee to deposit 50% of the amount and the respondent being an institution running educational institutions would face the prospectus of closure of those institutions collaterally impacting the students' studies as well.The Counsel for the respective parties have also presented competing contentions on the service tax liability of the respondent.We however decline to record those contentions or the consequences thereon since the substantive appeal of the respondent against the order of the Primary Authority is potentially pending adjudication before the Tribunal.Suffice it to record that in view of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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