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TMI Blog2014 (5) TMI 68X X X X Extracts X X X X X X X X Extracts X X X X ..... ct (Composition Scheme for Payment of Service Tax) Rules, 2007 on the condition that the contractor would not avail credit of duty paid on inputs used by him in the construction. The Tribunal in the case of Galaxy Mercantile (supra) took a view that reversal of credit/pre-deposit to the extent of 35% of the credit involved on inputs and capital goods would be sufficient for the purpose of entertaining the appeal on merits. At the prima facie stage we are of the view that the decision of the Tribunal in Galaxy Mercantile (supra) is applicable to the facts of this case - Time to make pre deposit is extended - Decided partly in favour of assessee. - Central Excise Appeal (L) No. 357 of 2013 - - - Dated:- 7-1-2014 - Mohit S. Shah, C.J. and M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cise. 4. The appellant has got constructed a shopping mall at Nashik. In the construction of shopping mall, the appellant has inter alia availed of Cenvat credit in respect of Excise duty paid on capital goods, on inputs and input services used in/or in relation to the construction of mall. The appellant is now providing output services of renting of immovable properties at its shopping mall. The appellant has utilized the Cenvat credit of tax availed in respect of capital goods, inputs and input services used in the construction of mall to discharge Service Tax on its output service of renting of immovable properties. 5. On 20 November, 2011, a show cause notice was issued to the appellant seeking to disallow the Cenvat credit availe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ailed to follow the operative part of that decision without any reasons. In this case the Tribunal directed the appellant to deposit 35% on capital goods ignoring the fact that the appellant had already reversed an amount of Rs. 1.37 crores being the credit taken on inputs ignoring the fact that in Galaxy Mercantile (supra) a pre-deposit of 35% of the credit availed on the capital goods and inputs in the aggregate was directed to be deposited/reversed for the appeal being entertained on merits. Besides the appellant s plea of financial hardship (accumulated losses of Rs. 18.59 crores) was not considered in impugned order while directing pre-deposit. 8. As against the above, it is contended by the revenue that facts of the appellant s cas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he facts of this case. The distinction sought to be drawn by the revenue would be appropriately considered at the time of final hearing of the appeal. In the circumstances, as of now there is no justification to apply a different yardstick from that applied in Galaxy Mercantile (supra) by the Tribunal at the stage of pre-deposit. 10. One more factor to be borne in mind in this case is that the appellant had pleaded financial hardship in pre-depositing the amount of demand as it had accumulated losses the extent of Rs. 18.59 crores as on 31 March, 2013. In the case of Galaxy Mercantile (supra) there was no financial hardship pleaded before the Tribunal. This is an additional factor which impels us to modify the impugned order so as to be ..... X X X X Extracts X X X X X X X X Extracts X X X X
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