K. Bhaskaran vs Commissioner of Central Excise (Appeals) and Another

V. Dhanapalan, J.—Heard Mr. K. Jayachandran, learned counsel for the petitioner, Mr. M. Santhanaraman, learned Senior Central

Government Standing Counsel for the respondents in W.P. No. 2797 of 2013 and Mr. K.A. Ravindranath, learned Central Government Standing

Counsel for the respondents in W.P. No. 2798 of 2013. In both the writ petitions, pre-deposit-cum-appeal order in Nos. 6 and 7 of 2013 (M-ST

(PD) in A. Nos. 395 and 396 of 2012 (M-ST), passed by the first respondent-Commissioner of Central Excise (Appeals) have been challenged,

seeking to quash the same as unlawful and unsustainable, with a further direction to the first respondent to dispose of Appeal Nos. 395 and 396 of

2012 (M-ST) on the merits without insisting on any pre-deposit of the amounts demanded in order in Original Nos. 2 and 3 of 2012, dated

January 10, 2012 made by the second respondent.

The main focus of the arguments advanced by the learned counsel for the petitioner is that the petitioner is not at all liable to pay any service tax,

as the activities carried on by the petitioner will not fall under the category of ""service"" and therefore, the question of making any pre-deposit does

not arise and the impugned order dated January 17, 2013 calling upon the petitioner to make pre-deposit amount of Rs. 8.25 lakhs, is on the

higher side and it may cause severe hardship to the petitioner.

On the other hand, learned counsel for the respondents-Revenue submitted that if any person is aggrieved by the order of the original authority,

on appeal, it is mandatory to pre-deposit the amount as per the provisions of the Finance Act or the Central Excise Act as the case may be, and in

case there is any hardship, it is for the authority concerned to look into the same. In the instant case, the first respondent has taken a lenient view to

bring down the pre-deposit to the extent of 19 per cent only.

It is not in dispute that the respondents initiated action against the petitioner for non-payment of service tax. The original authority has passed an

order for payment of Rs. 41,86,929 (Rs. 35,63,353 + Rs. 6,23,576) towards service tax with interest and penalty, as against which, the petitioner

has gone on appeals before the first respondent-Commissioner of Central Excise (Appeals) along with stay petitions. After considering the

petitioner''s grievances, including the prima-facie case, balance of convenience, financial burden and other difficulties, the first respondent ultimately

came to the conclusion and ordered pre-deposit of Rs. 8.25 lakhs (Rs. 7 lakhs + Rs. 1.25 lakhs) (rupees eight lakhs and twenty-five thousand

only) to be paid in cash on or before February 7, 2013 u/s 35F of the Central Excise Act, made applicable to service tax as per section 83 of the

Finance Act and the balance was waived. It was also observed in the impugned order that if the pre-deposit is not paid as ordered, the subject

appeal will stand dismissed automatically.

Law is well-settled that the capacity of a party to pay the pre-deposit amount had to be noticed and the financial burden and undue hardship for

the party to resort to claim waiver of the pre-deposit have also to be considered. In this regard, learned counsel for the respondents-Revenue

relied on a decision of a Division Bench of this court reported in Trendy Moods Vs. Customs, Excise and Gold (Control) Appellate Tribunal (now

known as Customs, Excise and Service Tax Appellate Tribunal) and Commissioner of Customs, wherein, this court, after taking into account the

various decisions of the Supreme Court, for and against, ultimately came to the conclusion that the capacity of the appellant therein to pay the

amount having been noticed and in the absence of any financial burden, it cannot be construed that there is an undue hardship for the appellant

therein to resort to claim waiver of pre-deposit.

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 into account all the material facts, which alone can come to the wisdom of the authority to give certain waiver of pre-deposit

to the party who is on appeal.

In the instant case, the main plea of the petitioner is the question of applicability of service tax itself to the petitioner. It is for the appellate

authority to take a decision on the said question and therefore, when the appeals are pending before the appellate authority, such a question raised

by the petitioner in these writ petitions, is a matter for examination by the appellate authority. The undue hardship and other difficulties expressed

by the petitioner, much less what is now claimed, are not available in the present circumstances and the first respondent himself has come to a

conclusion to reduce the pre-deposit amount with a lenient approach. Therefore, in my considered opinion, there is no merit in these writ petitions.

However, learned counsel for the petitioner submitted that the last date of pre-deposit falls tomorrow (February 7, 2013), and he made a plea

that on payment of such pre-deposit amount as ordered by the first respondent-appellate authority, the first respondent-appellate authority may be

directed to dispose of the appeals within a time-frame.

Taking into account the above submissions made by the learned counsel for the petitioner, the petitioner shall pay the pre-deposit amount as

ordered by the first respondent in the impugned order, within a period of two weeks from today, and on such payment, the first respondent-

appellate authority shall dispose of the appeals themselves, on merits and in accordance with law, within a period of four weeks thereafter. With

the above observations and directions, the writ petitions are dismissed. No costs. The miscellaneous petitions are closed.