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TMI Blog2014 (8) TMI 100X X X X Extracts X X X X X X X X Extracts X X X X ..... ithin a period of eight weeks and granting waiver of deposit of the balance tax, interest and penalty, pending the appeal. 2. The substantial questions of law that arise for consideration in this appeal are - "1) Whether the order of the Tribunal is right in directing a pre-deposit of Rs. 30 Lakhs for hearing the appeal, when the appellant is not liable to pay the service tax, since they are only the sub-contractor of the main contractor. 2) Whether the order of the Tribunal is right in directing the appellant to pre-deposit when the main contractor themselves admitted that they have already paid the service tax liability to the Department. 3) Whether the Tribunal is right when the sub-contractor agreement is specifically mentioned that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r Cenvat Credit for the payment made to the appellant." 3. The appellant undertook the job of executing a sub-contract awarded to the main contractor, viz., Sri Sai Engineering & Drilling and M/s.Shiv Vani Oil and Gas Exploration and Services, who undertook to execute the work for M/s.ONGC, which offered the contract for their hole drilling on seismic exploration activity. It is an admitted fact that the appellant is a registered service tax assessee under the Finance Act, 1994. 4. A show cause notice was issued claiming service tax of Rs. 1,18,39,576/= (Rupees One Crore Eighteen Lakhs Thirty Nine Thousand Five Hundred and Seventy Six only) in terms of Section 73 (1), interest under Section 75 and penalty under Section 76 of the Finance A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is an issue to be decided in the appeal. However, the Appellate Tribunal, taking note of the undue hardship due to the financial difficulties faced by the appellant herein, ordered pre-deposit as stated above. Aggrieved by the said order of the Appellate Tribunal, the appellant has preferred the present appeal. 6. Heard Mr.M.N.Bharathi, learned counsel appearing for the appellant and Mr.Sundareswaran, learned standing counsel appearing for the respondent. 7. At this juncture, it is apposite to refer to a decision of the Supreme Court in Benara Valves Ltd. v. CCE, (2006) 13 SCC 347, wherein it has been held as under: "8. It is true that on merely establishing a prima facie case, interim order of protection should not be passed. But if on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty 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 person, 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 interests of the Revenue: Provided further that where an application is filed before the Commissioner (Appeals) for dispensing with the deposit of duty d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 14. The word undue adds something more than just hardship. It means an excessive hardship or a hardship greater than the circumstances warrant. 15. The other aspect relates to imposition of condition to safeguard the interests of the Revenue. This is an aspect which the Tribunal has to bring into focus. It is for the Tribunal to impose such conditions as are deemed proper to safeguard the interests of the Revenue. Therefore, the Tribunal while dealing with the application has to consider materials to be placed by the assessee relating to undue hardship and also to stipulate conditions as required to safeguard the interests of the Revenue. "8. This Court, on the facts of the case, as put forth by the appellant, is not inc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by the Tribunal only in the appeal. However, the payment of service tax liability by the main contractor, which is a prima facie case, put forth by the appellant, enures to the benefit of the appellant. Therefore, this Court is inclined to modify the order with regard to pre-deposit. 11. For the foregoing reasons, we pass the following order: (i) On the questions of law raised, we are of the view that the Tribunal was not justified in ordering the pre-deposit in the manner stated in its order dated 24.9.2013; and (ii) Consequently, the order of the Tribunal dated 24.9.2013 is modified to the effect that the appellant shall make a pre-deposit of Rs. 15,00,000/= (Rupees Fifteen Lakhs only) within eight weeks from today, as a condition p ..... X X X X Extracts X X X X X X X X Extracts X X X X
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