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TMI Blog2013 (10) TMI 1165X X X X Extracts X X X X X X X X Extracts X X X X ..... llant but also to the merits of the case, thus, requiring the CESTAT to also prima-facie appraise the merits and record an opinion for or against the appellant - An appellate forum cannot where the opinion recorded does not suffer from the aforesaid defects, impose its own perception of the merits of the case whatever be the nature of “undue hardship”. The appellant has not pleaded any financial hardship or financial distress in support of its plea of “undue hardship” and has mainly confined its pleadings to the merits of the demand raised by the revenue - A perusal of the orders passed by the Assessing Officer and the Appellate Authority do not enable us to record an emphatic finding in favour of the appellant that duty demanded and pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... those fixed by M/s Maruti Suzuki India Limited. The Assessing Officer as well as the First Appellate Authority have wrongly held that the incentives fall within the expression Business Auxiliary Service and is, therefore, exigible to service tax. It is further submitted that though show cause notice was issued on 16.09.2011, service tax has been demanded from 01.04.2006 to 31.03.2011. It is further submitted that the CESTAT has itself held that the appellant has an arguable case, the entire amount of tax component should have been waived. It is further submitted that an application filed under Section 35F of the Act cannot be decided mechanically as it has to be decided after considering the merits of the case, balance of convenience and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an authorised dealer of M/s Maruti Suzuki India Limited and has been brought within the service tax net in respect of incentives received for achieving targets of sales of cars and provided in relation to promotion and marketing of cars produced and provided by M/s Maruti Suzuki India Limited. The appellant is seen to have an arguable case on the issue whether its activities fall within the definition of Business Auxiliary Service . 2. Having regard to the prima facie case and balance of convenience, we consider it appropriate to grant stay of further proceedings pursuant to the impugned order, on condition that the appellant shall deposit 50% of the tax component as assessed, while granting stay of the balance of the duty component and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n, 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 interest of revenue. Provided further that where an application is filed before the Commissioner (Appeals) for dispensing with the deposit of duty demanded or penalty levied under the first proviso, the Commissioner (Appeals) shall, where it is possible to do so, decide such application within thirty days from the date of its filing. A perusal of Section 35F of the Act, reveals that a person desirous of appealing against an order relating to any duty demanded or any penalty levied shall pending the appeal deposit with the adjudicating authorit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the applicant for waiver and has to be established by him. A mere assertion about undue hardship would not be sufficient. It was noted by this Court in S.Vasudeva V. State of Karnataka and Ors. (AIR 1994 SC 923) that under Indian conditions expression undue hardship is normally related to economic hardship. Undue which means something which is not merited by the conduct of the claimant, or is very much disproportionate to it. Undue hardship is caused when the hardship is not warranted by the circumstances. 13. For a hardship to be 'undue' it must be shown that the particular burden to have to observe or perform the requirement is out of proportion to the nature of the requirement itself, and the benefit which the applicant wo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re the opinion recorded does not suffer from the aforesaid defects, impose its own perception of the merits of the case whatever be the nature of undue hardship . Counsel for the appellant urges that as the service tax demanded does not fall within Business Auxiliary Expenses , the imposition of service tax and penalty are palpably illegal, the entire demand should have been stayed by the CESTAT. The appellant has not pleaded any financial hardship or financial distress in support of its plea of undue hardship and has mainly confined its pleadings to the merits of the demand raised by the revenue. A perusal of the orders passed by the Assessing Officer and the First Appellate Authority do not enable, us at this stage, to record an em ..... X X X X Extracts X X X X X X X X Extracts X X X X
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