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TMI Blog2015 (9) TMI 422X X X X Extracts X X X X X X X X Extracts X X X X ..... eeking waiver of the pre-deposit and stay of further proceedings pursuant to the adjudication order dated 10th May, 2013 passed by the Commissioner of Central Excise ('CCE') confirming a service tax demand of Rs. 1,36,15,903/- apart from interest and penalties. 2. The basis of the demand of service tax on HPCL is an agreement dated 31st October, 2007 entered into between HPCL and Indraprastha Gas Ltd. ('IGL') for distribution of Compressed Natural Gas ('CNG') through the HPCL owned/leased retail outlet in accordance with the terms and conditions set out in the said agreement. The question that arose in the proceedings before the CCE was whether in terms of the said agreement it could be said that HPCL was providing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ectly and private parties are receiving commission and there is no transactions of principal to principal basis.' 4. Before the CESTAT HPCL also placed reliance was also placed on an interim the order dated 9th February 2015 of the CESTAT, Principal Bench, New Delhi in Indian Oil Corporation Ltd v. Commissioner of Service Tax, Delhi, Stay Order No. 50557/2015-ST(Br) (hereafter the 'IOCL v. CST, Delhi' case) where in a similar agreement between Indian Oil Corporation Ltd.(IOCL) and IGL the Tribunal, relying on BPCL v. CST, Mumbai (supra) held that "prima facie, we are of the view that facts of the applicants case are similar to Bharat Petroleum Corp. Ltd" and ordered a complete waiver of pre-deposit. 5. In the impugned order, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vered by substantially similar agreements the final order in Bharat Petroleum Corporation Ltd. (supra) and the interim order in Indian Oil Corporation Ltd. (supra)". The CESTAT held that on balancing the interests of the Revenue and HPCL, requiring the making of a pre-deposit of 50% of the assessed liability along with proportionate interest would be justified. 7. At the hearing of the present appeal on 21st August, 2015, the Court recorded the submission of Mr Devnath, learned counsel for the Appellant, that he would on the next date produce a copy of the agreement entered into between HPCL and MGL, which was the subject matter of the final order in BPCL v. CST, Mumbai. He also undertook to inform the Court whether any appeal had been fil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) being favour of HPCL, it had a prima facie case. 9. The Court has been shown a copy of the order dated 23rd February, 2015 passed by the Supreme Court in Civil Appeal No.2471-2473 of 2015 preferred by CST, Mumbai against the aforementioned final judgment in BPCL v. CST, Mumbai (supra) issuing notice but not granting stay. The issue is, therefore, pending consideration in the Supreme Court. 10. In that view of the matter, the Court is of the view that the CESTAT was not justified in declining to grant an unconditional stay in favour of the Appellant, without requiring the making of any pre-deposit. 11. For the aforementioned reasons, the impugned order dated 14th July 2015 of the CESTAT is hereby set aside. There shall, during the pende ..... X X X X Extracts X X X X X X X X Extracts X X X X
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