9911796707
TMI Blog2011 (7) TMI 868X X X X Extracts X X X X X X X X Extracts X X X X ..... period 15* September, 2003 to 31st December, 2007. This amount included Rs. 5,39,13,757 towards services allegedly rendered under the category "Business Auxiliary Services" (BAS); Rs. 1,13,64,536 towards "man power supply services"; Rs. 16,42,899 towards "maintenance or repair services", and Rs. 22,75,707 towards "management consultancy services". The service tax demanded was in relation to the project undertaken by the Petitioner, from 19* May, 2003 to 18* May, 2008, for the Madhya Pradesh State Agricultural Marketing Board for their e-Krishi Vipanan Project. 3. It is the Appellant's case that they did not collect service tax from their clients; the Respondent had passed the order on 31st December, 2009, a copy of which was received by the Appellant on 31st March, 2010, confirming the service tax demanded in the Show Cause Notice; in addition, interest was levied under Section 75 of the Finance Act 1994; and penalty of Rs. 6,91,96,898, equal to the demand, was imposed in terms of Section 78 of the Finance Act. Aggrieved by the said order, the Appellant carried the matter in appeal to the CESTAT. They filed an application seeking waiver of pre-deposit of the entire service ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... comply with the terms of the stay order would result in dismissal of the appeal without further indulgence. 8. Sri G. Mohan Rao, Learned Counsel for the Appellant, would contend that the Appellant had a very strong case on merits; they were not liable to pay service tax claimed to be due by the Respondent; they had not collected service tax from their clients; the CESTAT had not taken the Appellant's financial hardship into consideration; and, as financial hardship is one of the essential considerations which ought to have been kept in kind while deciding an application seeking waiver of pre-deposit, the CESTAT had erred in directing the Appellants to pay Rs. 2.00 Crores as pre-deposit for the appeal to be entertained. Learned Counsel would rely on Benara Valves Ltd v. Commissioner of Central Excise (2006) 13 SCC 347. 9. Section 35B(1)(a) of the Act enables any person aggrieved by a decision or order passed by the Commissioner of Central Excise as an Adjudicating Authority to appeal to the Appellate Tribunal against such order. Under Section 35F, where in any appeal the decision or order appealed against relates to any duty demanded in respect of goods which are not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on of public interest. (CCE v. Dunlop India Ltd., (1985) 1 SCC 260). 12. In matters relating to grant of stay, pending disposal of appeal, the CESTAT must exercise discretion judicially, and should pass an order which is fair, legal and in public interest. (Benara Valves Ltd. (2006) 13 SCC 347). On merely establishing a prima facie case, interim order of protection should not be passed. Where denial of interim relief may lead to public mischief, grave irreparable private injury or shake a citizen's faith in the impartiality of public administration, interim relief can be given. Petitions for stay should not be disposed of in a routine matter unmindful of the consequences flowing from the order requiring the Assessee to deposit full or part of the demand. There can be No. rule of universal application in such matters, and the order has to be passed keeping in view the factual scenario involved. (Indu Nissan Oxo Chemicals Industries Limited v. Union of India (2007) 13 SCC 487.) The Petitioner has No. absolute right of stay. He can obtain stay of realisation of tax levied or penalty imposed in an appeal subject to the limitations of Section 35-F of the Act, which gives discret ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... facie case has been shown; (3) The balance of convenience must be clearly in favour of making of an interim order and there should not be the slightest indication of a likelihood of prejudice to the interest of public revenue; (4) While dealing with the applications, the twin requirements of consideration i.e., consideration of undue hardship, and imposition of conditions to safeguard the interests of revenue must be kept in view; (5) When the Tribunal decides to grant full or partial stay, it has to impose such conditions as may be necessary to safeguard the interests of the revenue. This is an imperative requirement; and (6) An Appellate Tribunal, being a creature of the statute, cannot ignore the statutory guidance while exercising general powers or expressly conferred incidental powers. (Commissioner of Central Excise, Guntur v. Sri Chaitanya Educational Committee (2011) 38 VST 292 (AP)). 15. Bearing in mind the principles aforementioned, let us now examine the contentions urged on behalf of the Appellant. The primary contention is that the CESTAT, while granting conditional waiver of pre-deposit, did not take into consideration t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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