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TMI Blog2013 (9) TMI 865X X X X Extracts X X X X X X X X Extracts X X X X ..... itional Commissioner, Central Excise, Jodhpur by the adjudication order dated 10.12.2011 confirmed service tax demand of Rs.2,06,270/- , besides ordering recovery of interest under Section 75, and the penalties imposed under Sections 76 & 78 of the Finance Act, 1994. Aggrieved thereby, the appellant/assessee preferred an appeal. The Commissioner (Appeals-II), Jaipur disposed of the stay application filed along with the appeal, by Stay Order No.30 CB/ST/JPR-II/2011, dated 20.6.2011 directing pre-deposit of the entire service tax liability within three weeks from the date of receipt of the order and furnish proof of deposit to the concerned Range Superintendent under intimation to the appellate authority. This order also stipulated that on no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ithout recording any finding on the submission by the appellant in their stay application; that the appellant has a strong prima facie case on limitation and the balance of convenience is also in favour of the appellant. The Tribunal also observed that if the appellants were directed to make any pre-deposit, the appellant would suffer irreparable loss and that the disposal of the stay application by the lower appellate authority was not in conformity with principle enunciated in the judgement of the Andhra Pradesh High Court in C.C.E., Guntur vs. Sri Chaitanya Educational Committee reported in 2011 (22) STR 135 (A.P.) and therefore the order of the lower appellate authority which was passed on merits must suffer invalidation. 6. In the cas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er of the lower appellate authority was set aside and the matter remitted to the said authority, to decide the appeal afresh, without insisting on any pre-deposit. 8. In Hydranautics Membranes India Ltd. vs. UOI-2005 (191) ELT 68 (Guj.), the relevant observations of the Gujarat High Court, in para 2 of the order read: 2. So far as the present case is concerned, we have learned advocates appearing for the parties. It is stated before us that the appeal preferred before Commissioner (Appeals), Central Excise & Customs, Baroda has been dismissed for non-compliance of provisions of Section 35F of the Customs Act, of pre-deposit of the amount. Without expressing any opinion on the merits of this case, looking to the peculiar facts and circums ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... feguard the interests of Revenue. 10. In view of statutory provisions adverted to , the statute enjoins pre-deposit of the adjudicated liability as a primary obligation. The proviso confers a discretion on the appellate authority to order waiver of the requirement of pre-deposit, wholly or pro-tanto, where deposit of the adjudicated tax liability would cause undue hardship. The appellate authority must also consider safeguarding of Revenue interests. 11. As the lower appellate authority had exercised discretion directing deposit of tax component, a formal order having consequences has come into force. Qua the provisions of Section 86 of the Act, the order of the lower appellate authority (Commissioner (Appeals) directing pre-deposit is no ..... X X X X Extracts X X X X X X X X Extracts X X X X
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