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TMI Blog2015 (1) TMI 903X X X X Extracts X X X X X X X X Extracts X X X X ..... ould cause undue hardship to such person, the Tribunal might dispense with such deposit, subject to such conditions as the learned Tribunal may deem fit to impose, so as to safeguard the interest of the Revenue. - There can be no doubt that undue hardship not only covers payment under compulsion where the appellant has a strong prima facie case, but also where the appellant has an arguable case. Where an appellant makes out a very strong prima facie case, and the Appellate Authority is satisfied that the demand is ex facie unsustainable in law, the requirement of pre-deposit may unconditionally be dispensed with. Where however, the prima facie case is not that strong, the interest of the revenue would necessarily have to he secured, and the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pur Commissionerate, West Bengal, that is the Adjudicating Authority, alleging that the appellant had short paid Service Tax to the extent of ₹ 1,38,00,319 including Education Cess and Secondary and Higher Education Cess for the period from 2004-2005 to 2008-2009 in respect of gross amount of ₹ 14,13,09,248 received by the appellant during the aforesaid period, by way of service charges for taxable services rendered by the appellant. Such allegation was apparently based on the Balance Sheet of the appellant. 5. The petitioner was thus called upon to show cause why the aforesaid amount of ₹ 1,38,00,319 should not be recovered from the appellant under the proviso to Section 73(1) of the Finance Act, 1994 along with propos ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appellant to pay 25% of the duty involved, less ₹ 10 lakhs already paid. According to the appellant, the order directing payment of 25% was dated 10 October, 2012, but the detailed judgment was passed on 1 November, 2012. 9. The appellant filed a miscellaneous application on 20 December, 2012 before the learned Tribunal inter alia contending that the Adjudicating Authority had misconstrued the balance sheets and taken the total income of the appellant, as income from service rendered, overlooking the fact that the turnover related to manufacturing and trading work. 10. By an order dated 19 April, 2013, inter alia impugned in this appeal, the learned Tribunal not only rejected the miscellaneous application, but also dismissed th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rd the interest of the Revenue. 15. By reason of Section 86(7) of the Finance Act, as it stood at the material time the provisions of the Central Excise Act, 1944 relating to the hearing of appeals is required to be followed in case of appeals before the learned Tribunal relating to Service Tax under Chapter V of the Finance Act as amended from time-to-time. 16. It is now well settled that undue hardship is not financial hardship alone payment under compulsion of money that is not due, also constitutes financial hardship. Reference may in this context be made to the following judgments : Benara Valves Limited v. Commissioner of Central Excise reported in 2006 (204) E.L.T. 513 (S.C.) = 2008 (12) S.T.R. 104 (S.C.) Indo Nissan Oxo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s set aside only insofar as the appeal before the learned Tribunal has been dismissed for non-compliance of the requirement to pre-deposit 25% of the duty demanded in terms of the earlier order dated 10 October, 2012. In the event the appellant deposits duty in terms of the order dated 10 October, 2012, within 6 weeks from the date of receipt of a certified copy of this order, the appeal shall be adjudicated on merits. 21. This appeal is disposed of accordingly. 22. Let photostat certified copy of this judgment and/or order, if applied for, be supplied to the learned advocates appearing for the parties expeditiously subject to compliance of requisite formalities. 23 . [Per : Anindita Roy Saraswati, J.]. - I agree. - - TaxTMI - ..... X X X X Extracts X X X X X X X X Extracts X X X X
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