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TMI Blog2014 (5) TMI 504X X X X Extracts X X X X X X X X Extracts X X X X ..... lar 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 would derive from compliance with it - The impugned order which has been passed without considering the prima facie merits of the submissions of the petitioner cannot be sustained and the same is set aside and quashed - Tribunal shall decide the issue of dispensation of pre-deposit afresh in accordance with law and in the light of the observations made above. The Tribunal may, if it so chooses, proceed to decide the appeal on merits, notwithstanding the pendency of any request for dispensation of pre-deposit - Matter remanded back - Decided in favour of assessee. - W.P. No. 19904 (W) of 2012 - - - Dated:- 13-9-2012 - Indira Banerjee, J. Dr. Samir Chakraborty and Shri Abhijit Biswas, Advocates, for the Petitioner. Shri Rajarshi Bharadwaj and Mrs. Santa Mitra, Advocates, for the Respondent. ORDER In this writ petition the writ petitioner has challenged an order No. S-667/KOL/2012, dated 16th July, 2012 [2012 (28) S.T.R. 481 (Tri. - Kol.)] passed by the Customs, Excise and Service Tax Appellate Tribunal, Kolkat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with NCL concluded on 28th November, 2005 was for planning, designing engineering, construction, fabrication, supply, erection, trial run and commissioning of Coal Handling Plant at Nigahi Phase-I (Package A) for civil, structural, electrical and mechanical works along with allied auxiliary facilities. In this case also two separate agreements in writing were executed, one for supply of equipment and accessories and the other for installation and related services of the value of Rs. 5,853.65 lakhs and Rs. 5,643.31 lakhs respectively. 8. The third contract executed with South Eastern Coalfields Limited on 29th April, 2006 for planning, designing, construction, fabrication, supply, erection, trial run and commissioning of two numbers of Silos of 3200 tone capacity each with rapid wagon loading system of 5500 tonnes per hour and Belt Conveyor System of 2100 tonnes per hour rated capacity inclusive of all civil, structural, electrical and mechanical works and allied auxiliary facilities such as ventilation, dust extraction and dust suppression system, fire fighting system, drinking water supply system etc. on turnkey basis. Two agreements in writing were executed one for supply ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o show cause why penalty under Sections 76, 77 and 78 of the Act should not be imposed upon the appellant for alleged contravention of the provisions of the Act and the Service Tax Rules, 1994 (hereinafter referred to as the said Rules ). 14. By a letter dated 25th September, 2008 the petitioner replied to the said show cause notice denying the allegations made therein and inter alia contending that the proceedings initiated by the impugned show cause notice, upon invocation of the extended period of limitation, was not sustainable in law. 15. The petitioner contended that even though the petitioner entered into two separate contracts, both the contracts were for composite job against a single notice notifying bid which made both the contracts in effect a single contract for a turnkey project and it was for that reason that both the contracts contained cross fall breach clause specifying that breach of any one contract would also constitute the breach of the other contract. 16. The petitioner contended that the ECP Contract in the nature of turnkey projects including engineering, procurement and construction or commissioning was brought into the ambit of Service Tax with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... also contended that the petitioner had regularly filed ST 3 returns showing the particulars regarding taxable value realized, abatement claimed and Service Tax payable. Thus, it would be evident that the petitioner had never concealed any facts from the respondent authorities. Therefore, it could not be contended that there was wilful suppression or misrepresentation of facts on the part of the petitioner so as to invoke the extended period of limitation for issue of the show cause notice. 23. By an Order No. V(15) 12/ST-Adjn./Commr./09/22450, dated 14th September, 2009 the Commissioner Sales Tax, Kolkata confirmed demand of Service Tax amounting to Rs. 7,07,02,615/- Education Cess amounting to Rs. 13,48,416/- and Higher Education Cess amounting to Rs. 1,01,177/- the total being Rs. 7,21,52,207/- against the petitioner along with interest in terms of Section 75 of the Finance Act, 1994. The Commissioner also imposed a penalty of Rs. 7,21,52,207/- under Section 78 of the Finance Act, 1994 i.e. 100% of the aggregate of the Service Tax, Education Cess, and Higher Education Cess confirmed by the Order under appeal and further penalty of Rs. 5,000/- under Section 77 of the Finance A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al Excise or Assistant Commissioner of Central Excise or Deputy Commissioner of Central Excise, as the case may be, under this sub-section. Sub-section (7) Subject to the provisions of this Chapter, in hearing the appeals and making orders under this section, the Appellate Tribunal shall exercise the same powers and follow the same procedure as it exercises and follows in hearing the appeals and making orders under the Central Excise Act, 1944. Section 35F of the Central Excise Act, 1944 provides as follows :- 35F. Deposit, pending appeal of duty demanded or penalty levied. - Where in any appeal under this Chapter, the decision or order appealed against relates to any duty demanded in respect of goods which are not under the control of Central Excise authorities or any penalty levied under this Act, the person desirous of appealing against such decision or order shall, pending the appeal, deposit with the adjudicating authority the duty demanded or the penalty levied : Provided that where in any particular case, the Commissioner (Appeals) or the Appellate Tribunal is of opinion that the deposit of duty demanded or penalty levied would cause undue hardship to such ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to casually dispose of stay applications by referring to decisions in Siliguri Municipality and Dunlop India cases (supra) without analysing factual scenario involved in a particular case. 11. Two significant expressions used in the provisions are undue hardship to such person and safeguard the interests of revenue . Therefore, while dealing with the application twin requirements of considerations i.e. consideration of undue hardship aspect and imposition of conditions to safeguard the interest of Revenue have to be kept in view. 12. As noted above there are two important expressions in Section 35F. One is undue hardship. This is a matter within the special knowledge of 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. - MANU/SC/0199/1994 : [1993] 2 SCR 715 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 warran ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . v. Union of India reported in 2010 (250) E.L.T. 200 (Bom.) the Court cannot be oblivious of the state of economy and the need for companies to have sufficient liquidity to carry on business and/or industrial activity. Any burden by way of deposit of cash that is required to keep the business running and/or for expansion of business activities has an adverse effect on productivity, employment and the like. 34. As held by Ruma Pal, J. in Bongaigaon Refinery and Petrochem v. Collector of Central Excise (A), Cal. reported in 1994 (69) E.L.T. 193 undue hardship is not to be construed as financial hardship alone but covers prima facie strong case or even an arguable case in appeal. This Court was of the view that discretionary power must be exercised in favour of the assessee in the absence of goods reasons to the contrary. The aforesaid view was reiterated by this Bench in Farmania Steel Works v. Union of India reported in 2011 (274) E.L.T. 331 (Cal.). 35. The impugned order which has been passed without considering the prima facie merits of the submissions of the petitioner cannot be sustained and the same is set aside and quashed. 36. The learned Tribunal shall decide the i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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