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TMI Blog2013 (3) TMI 293X X X X Extracts X X X X X X X X Extracts X X X X ..... undue hardship for the party to resort to claim waiver of the pre-deposit have also to be considered. As decided in Trendy Moods Vs. Customs, Excise and Gold (Control) Appellate Tribunal, Chennai (2008 (12) TMI 215 - HIGH COURT OF JUDICATURE AT MADRAS) the capacity of the appellant therein to pay the amount having been noticed and in the absence of any financial burden, it cannot be construed that there is an undue hardship for the appellant therein to resort to claim waiver of pre-deposit. In this case, a sum of ₹ 47,93,469/- as service tax, with interest, etc., were levied by the original authority, and thereafter, in the appeal stage, the first respondent passed the impugned order, reducing the amount to ₹ 4 lakhs as pre-d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lakhs under Section 35-F of the Central Excise Act (hereinafter referred to as 'the Act') made applicable to the Service Tax as per Section 83 of the Finance Act and the balance amount was waived, is called in question, seeking to quash the same as unlawful, arbitrary and not sustainable in law. 3. According to the petitioner-Company, the officers attached to the second respondent called for certain details relating to the activities of the petitioner with one M/s.Shiv-Vani Oil and Exploration Services Limited, New Delhi and M/s.Max-Tech Oil and Gas Services Private Limited, New Delhi, for providing short hole drilling and 3D seismic job services. The petitioner engages labourers to drill the land up to a depth stipulated by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... titioner appeared before the then adjudicating authority on 14.3.2011 and made submissions and the successor-adjudicating authority fixed hearing on 27.1.2012, and the counsel for the petitioner, vide letter dated 29.1.2012 informed his inability to attend the hearing due to other pre-occupation. The third respondent then fixed the hearing on 27.2.2012, on which date, the counsel for the petitioner appeared before the authority and the third respondent passed the order in Order-in-Original No.20/2012, dated 29.2.2012, levying service tax of ₹ 47,93,469/-, with interest, penalty, etc., against which, the petitioner filed a statutory appeal under Section 85 of the Finance Act, 1994, before the first respondent-appellate authority, along ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7. On the above background of pleadings and the submissions, I have heard the learned counsel appearing for the parties. 8. It is not in dispute that the petitioner is a Company engaging labourers to drill the land up to a depth stipulated by the clients, which is performed manually by unskilled labourers hired by the petitioner from time to time and the petitioner informed the Department that they are only sub-contractors and as per the agreement, the petitioner is precluded from charging/collecting service tax, as the main contractors remit service tax on the services provided by them to the ultimate client. The petitioner relies upon the trade notices issued and the clarification issued by the Central Board of Excise and Customs ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he financial burden and undue hardship for the party to resort to claim waiver of the pre-deposit have also to be considered. In this regard, it is worthwhile to notice a decision of a Division Bench of this Court reported in 2009 (235) ELT 231 (Trendy Moods Vs. Customs, Excise and Gold (Control) Appellate Tribunal, Chennai), wherein, this Court, after taking into account the various decisions of the Supreme Court, for and against, ultimately came to the conclusion that the capacity of the appellant therein to pay the amount having been noticed and in the absence of any financial burden, it cannot be construed that there is an undue hardship for the appellant therein to resort to claim waiver of pre-deposit. 11. The cardinal principle of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion regarding the petitioner's liability to pay the service tax as a sub-contractor, when it is alleged that the main contractor would remit the service tax on the services, has to be considered only by the first respondent-appellate authority at the time of deciding the appeal. 14. At this stage, learned counsel for the petitioner made a plea that the appeal pending before the first respondent-appellate authority may be directed to be disposed of within a time frame and petitioner may be given liberty to raise all the contentions that are raised in this Writ Petition, before the first respondent-appellate authority. It is needless to state that it is always open for both the parties to make out all the contentions that are raised in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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