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TMI Blog2016 (1) TMI 1064X X X X Extracts X X X X X X X X Extracts X X X X ..... the CENVAT credit was available with the Revenue, which would safeguard the interest, insistence upon the further deposit would cause undue hardship to the appellant and as such, the appellant has established a prima facie case for their claim of waiver of pre-deposit. Though complete waiver cannot be granted, having regard to the demand made by the Department, the Tribunal should have considered the reduction of pre-deposit already ordered, having regard to the availability of CENVAT credit to the extent of ₹ 77,00,000/-. But that has not been done. The appellant shall deposit a sum of ₹ 10,00,000/- (Rupees ten lakhs only) to the credit of the second respondent within a period of four weeks from the date of receipt of a copy ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iled for Income Tax purposes, the Department issued: (a) show cause notice No.186/2010, dated 15.04.2010, covering the period 2004-2005 to 2008-2009 and (b) show cause notice No.103/2010, dated 20.10.2010, covering the period 2009-2010. 2.2. The contention of the learned counsel for the Revenue was that the appellant did not include Booking and Forwarding Charges, Loading and Unloading charges, clearing charges, freight charges and vehicle charges in the taxable value and thus, the returns filed are incorrect. 2.3. The appellant filed a detailed reply, dated 23.07.2010, submitting that: (a) the appellant had done only transportation of goods for which they are not liable to pay service tax; and (b) even assuming that they are liable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he deposit of ₹ 74,41,994.00, as referred to in the order of stay. A request was also made by the assessee to adjust the CENVAT credit of ₹ 77,00,000/-, as against the order of pre-deposit. The Revenue commented that the conduct of the assessee in taking belated steps for verification of the deposit is not praise-worthy, but, however, granted eight weeks further time for compliance of the earlier order alone. The assessee was directed to produce a Verification Report from the Department and to deposit the balance amount. 2.6. On a subsequent occasion, the Authorised Representative of the Revenue placed the Verification Report, dated 24.09.2014, and clarified that the claim of the appellant that they have already paid an amoun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the year 2004-05 is barred by limitation; (b) the appellant had already paid a sum of ₹ 29,03,409/-; (c) the CENVAT credit of ₹ 77,00,000/- was available with the Department. It is further contended by the appellant that the Tribunal is not justified in passing the impugned order, when, prima facie, the demand itself is not justified, by virtue of the Board's Circular, dated 06.08.2008. 5. It is pointed out by the learned counsel for the appellant, in all these appeals that, as per the mandatory requirement of Section 35F of the Central Excise Act, 1944 (as made applicable to Service Tax), the Tribunal is expected to consider the prima facie case, balance of convenience, irreparable loss and injury and financial hardship ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dered the reduction of pre-deposit already ordered, having regard to the availability of CENVAT credit to the extent of ₹ 77,00,000/-. But that has not been done. 11. Therefore, the Final Order Nos.40606-40607, dated 01.06.2015, stand set-aside. However, having regard to the amount of demand involved, this Court feels it appropriate to direct the appellant to make a further deposit of ₹ 10,00,000/- (Rupees ten lakhs only) before the second respondent towards pre-deposit. Accordingly, Miscellaneous Order Nos.41045-41048 of 2014, dated 26.06.2014 stands modified on the terms and conditions enumerated in the following paragraph of this judgment. 12. Accordingly, these Civil Miscellaneous Appeals are disposed of, subject to th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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