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TMI Blog2014 (8) TMI 101X X X X Extracts X X X X X X X X Extracts X X X X ..... rder set aside and the appeal restored to the file of the Tribunal - Decided partly in favor of assessee. - C.M.A. No. 386 of 2014 - - - Dated:- 18-7-2014 - R. Sudhakar And G. M. Akbar Ali,JJ. For the Appellant : Mr. K. Jayachandran For the Respondents : Mr. V. Sundareswaran Standing Counsel for 2nd respondent JUDGMENT (Delivered by R. Sudhakar,J.) This appeal is filed seeking to set aside the order dated 14.5.2013 passed in Misc. Order No.41232 of 2013, in ST/S/209/2011 in ST/300/2011 by the Customs, Excise and Service Tax Appellate Tribunal, Chennai, and to direct the Tribunal to dispose of the appeal ST/300/2011 of the appellant on merits without insisting on any pre-deposit of the amounts demanded. 2. The substantial question of law that arises for consideration in this appeal is whether the Tribunal was justified in calling upon the appellant to make a pre-deposit of ₹ 35,00,000/- for entertaining an appeal in terms of Section 35-F of the Central Excise Act, 1944. 3.1. The brief facts of the case are as under: The appellant is engaged in post production services for film industry, media, advertising, etc. They started an education and acad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... R 7 Challan vide cheque No.612898 dated 23.6.09 against sl.no.(i) above. I also appropriate an amount of ₹ 1,19,091/- towards interest on the belated payment of service tax and short payment of service tax (Annexure C) for the period April 2004 to March 2008 against (iv) above. (vii) I appropriate an amount of ₹ 3,04,332/- paid in GAR 7 Challan vide cheque no.619121 dated 2.7.09 against sl.no.(i) above. I also appropriate an amount of ₹ 1,68,991/- paid by the assessee through Cenvat Credit against sl.no.(i) above. The total amount of appropriation in this Order is equal to ₹ 7,95,612/- towards service tax and ₹ 2,47,332/- towards interest as per Show Cause Notice. I direct the jurisdictional Deputy Commissioner of Service Tax to verify the genuineness of the payment made and appropriated and to ensure that the amounts have been remitted to government account. (viii) I impose a penalty of ₹ 50,25,575/- on M/s.Digital Magic Visuals (I) Ltd. under Section 78 of the Finance Act, 1994 for the contraventions discussed supra. (ix) I impose a penalty of ₹ 5,000/- on M/s.Digital Magic Visuals (I) Ltd. under Section 77 of the Finance Act, 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onal training institute; or (b) a recreational trained institute, to any person, from the whole of service tax leviable thereon under section 66 of the said Act. Explanation.- For the purposes of this notification,- (i) vocational training institute means a commercial training or coaching centre which provides vocational training or coaching that impart skills to enable the trainee to seek employment or undertake self-employment, directly after such training or coaching; (ii) recreational training institute means a commercial training or coaching centre which provides training or coaching relating to recreational activities such as dance, singing, martial arts or hobbies. 6. The above said notification was subsequently amended by another notification dated 16.6.2005 and the relevant portion reads as under: 24/2004-Service Tax, dated the 10th September, 2004 (G.S.R.593 (E), dated the 10th September, 2004) In the said notification:- (i) in the opening paragraph, the following proviso shall be inserted at the end namely:- Provided that nothing contained in this notification shall apply to the taxable services provided in relation to commercial training or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... able private injury or shake a citizen s faith in the impartiality of public administration, interim relief can be given. 9. It has become an unfortunate trend to casually dispose of stay applications by referring to decisions in Siliguri Municipality v. Amalendu Das, (1984) 2 SCC 436 and CCE v. Dunlop India Ltd., (1985) 1 SCC 260 cases without analysing factual scenario involved in a particular case. 10. Section 35-F of the Act reads as follows: 35-F. 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 person, the Commissioner (Appeals) or, as the case may be, the Appellate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... much force in the plea of the appellant regarding undue hardship and financial difficulty in pursuing the appeal on payment of the pre-deposit as ordered by the Tribunal. The same, therefore, requires to be modified considering the prima facie case of the appellant. The payment already made by the appellant towards tax and the further payment that we are ordering will safeguard the interest of the Revenue as well. 12. For the foregoing reasons and taking note of the fact that the appellant had already paid a sum of ₹ 7,95,612/- towards tax, we pass the following order: (i) On the question 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 14.5.2013; (ii) Consequently, the order of the Tribunal dated 14.5.2013 is modified to the effect that the appellant shall make a pre-deposit of ₹ 15,00,000/- (Rupees Fifteen Lakhs only) towards the claim of service tax within eight weeks from the date of receipt of a copy of this order and subject to such compliance, as stated in the order of the Tribunal dated 14.5.2013, the pre-deposit of balance amount demanded shall remain waived and i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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