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TMI Blog2014 (9) TMI 343X X X X Extracts X X X X X X X X Extracts X X X X ..... requires the petitioner to make the total pre-deposit of Rs. 2.5 crores (Rs. 67 lakhs + Rs. 183 lakhs) and they also seek for a consequential direction to the CESTAT to entertain the appeals by waiving pre-deposit. 2. The petitioner is a company engaged in construction activities, both residential, complexes and commercial and industrial complexes. During the period from August, 2005 to March, 2009, they have not paid appropriate Service Tax on certain projects executed by them, and therefore, the respondent-authorities demanded Service Tax in respect of two projects, namely "Meadows Residential" and "Pacifica Commercial", indicating the taxable value and Service Tax as follows : Sl. No. Project Name Taxable Value (Rs.) Service Ta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hich, the petitioner claims that the value of service (inclusive of value of input service) is only Rs. 35 crores and the genesis of the dispute is the difference of Rs. 26.38 crores, though either side did not focus on that issue so clearly, and therefore, it observed that the defect in arriving at the difference because of the two figures, is not for same components of costs and is on approximation basis only, based on which, the additional liability on account of dispute about the project cannot he prima facie more than about Rs. 6.2 crores (Rs. 3.26 crores being tax on Rs. 26.38 crores plus the Cenvat credit of Rs. 2.93 crores, which cannot be availed if average abatement of 67% is availed). The CESTAT also noticed another way of presen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ls. 6. Ultimately, by the impugned order dated 7-2-2013 in Misc. Order Nos. 40341/2013 and 40312/2013 in ST/S/499 & 500/2012 in ST/607 & 608/2012, the first respondent-CESTAT ordered to pre-deposit of Rs. 67 lakhs on account of Meadows Project and Rs. 183 lakhs on account of Pacifica Project, totalling Rs. 2.5 crores, as a condition for admission of the appeals and accordingly, the petitioner was directed to make such deposit within five weeks and report compliance on 23-3-2013. The CESTAT also observed that subject to such pre-deposit there shall be waiver of requirement of pre-deposit of balance dues for admission of the appeals and its collection stayed during the pendency of the appeals. This order of the CESTAT, dated 7-2-2013 is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... facie case of the petitioner, the balance of convenience, the undue hardship and the financial burden of the petitioner and came to the conclusion of ordering pre-deposit, which cannot be said to be arbitrary. 9. I have heard the learned counsel appearing for the parties and perused the material documents available on record. 10. Law is well-settled that the capacity of a party to pay the pre-deposit amount had to be noticed. The cardinal principle of consideration of the waiver of pre-deposit is based on undue hardship, prima facie case, balance of convenience, financial burden and other difficulties expressed by the party before taking the matter on appeal and these factors have to be weighed in relevant circumstances, taking ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fact before the lower authority and it has also been highlighted before the CESTAT for stay and ultimately, the CESTAT passed the impugned order of pre-deposit. 13. Considering the facts and circumstances of the case and the submissions made by the learned counsel appearing for the parties, as far as the amount of pre-deposit ordered by the first respondent-CESTAT at Rs. 67 lakhs in respect, of Meadows Project is concerned, the same is accepted by the petitioner, and hence, no interference is called for. As far as the pre-deposit ordered by the first respondent-CESTAT at Rs. 183 lakhs in respect of Pacifica Project is concerned, the same is disputed by the petitioner, which has to be gone into in the appeal before the CESTAT. 14.&em ..... X X X X Extracts X X X X X X X X Extracts X X X X
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