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TMI Blog2013 (11) TMI 344X X X X Extracts X X X X X X X X Extracts X X X X ..... g this application, learned counsel for appellant submits that after the misc. order was passed, the very same issue came up in the case of IILM Institute for HigherEducation & Others before the Principal Bench in New Delhi and the Principal Bench vide Order No. 10/ST/226/2013 dated 16.4.2013, had referred the matter to the Larger Bench. He submits that since the very same issue has been referred to the Larger Bench, the situation existing at the time of passing the misc. order has changed. He submits that it is settled law that when a matter is referred to the Larger Bench, unconditional stay has to be granted. 3. On the other hand, learned special counsel on behalf of Revenue submits that the stay order of the Tribunal was a detailed ord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le considering those cases, the case of the present appellant was also remanded for fresh consideration. In such a situation, the fact that the matter was referred to the Larger Bench by the Tribunal in New Delhi should not come in the way and should not require this Tribunal to modify the stay order already passed. In his submission, the stay order which cannot be compared with other cases in respect of the facts and circumstances should not be modified. 4. In his rejoinder, learned counsel for appellant has produced before us the decision of the Hon'ble High Court of Gujarat in the case of Amar Food Products vs. UOI [2010 (259) E.L.T. 490 (Guj.)] . He submits that in that case, the Tribunal, had ordered pre-deposit of 50% of duty relying ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that 1/3 rd of the service taxdemanded should be deposited. This was one fact the Tribunal had heavily relied upon while passing the stay order. In addition, in that case, the demand was approximately Rs. 85 crores involving extended period of limitation and the appellant was directed to pre-deposit 1/3 rd of the service tax demanded. In the present case, there is no extended period of limitation and the entire amount of service tax demanded is clearly within the normal period and even then, the appellant was directed to deposit only 1/3 rd of the service tax demanded. 6. As regards, the reference to the Larger Bench which was heavily relied upon by learned counsel, we find that the Division Bench of the Tribunal while referring the issue ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... chies of learning. What is "higher learning" and what not so, also requires to be considered, if relevant to Interpretation of the relevant provisions of the Act. We are also informed by the ld. DR as well as other counsel present in the court today that there are other appeals pending where the facts present issues which have a bearing on the same provisions that fall for interpretation in those appeals." This give an impression that what has been referred to the Larger Bench is for interpreting what is "higher learning" and what is not "higher learning" and interpretation of the relevant provisions of the Act. In respect of paragraph 2 above, we get an impression that the Tribunal did not consider that there was difference o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he tax demanded which involved larger period of limitation. This was also taken note of as an important point to arrive at while passing the order for pre-deposit to be made by the appellant. 7. In the light of the above discussion, we find that the appellant has not been able to make out a case for modification of our stay order dated 5.4.2013. However, in the interest of justice, we allow the appellant to make pre-deposit as directed in our stay order dated 5.4.2013 within eight weeks from today and report compliance on 10.9.2013. Subject to compliance of the requirement as directed above, there shall be waiver of pre-deposit and stay against recovery of the balance dues during pendency of the appeal. 8. The misc. application is dispose ..... X X X X Extracts X X X X X X X X Extracts X X X X
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