M/s. Prasad Corporation Ltd. vs The Commissioner of Central Excise

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

Government Standing Counsel appearing for the respondent. This Writ Petition is filed challenging the proceedings of the respondent, vide Pre-

deposit-cum-Appeal Order No. 169/2013 (M-ST (PD)) in A. No. 336 of 2012 (M-ST), dated 07.02.2013 issued u/s 35F Central Excise Act,

1944 read with Section 83 of the Finance Act, 1994 in and quash the same.

The case of the petitioner in a nut-shell is as follows:-

(a) The petitioner-Company is engaged in providing services relating to graphics, special effects, animation, etc. according to the specifications of

the customer. The petitioner entered into an annual maintenance contract in respect of maintenance of equipments imported with the foreign

company and for securing uninterrupted performance of the imported equipments and to get the concessional rates in import of essential spares,

the petitioner entered into an Extended Warranty Agreement. In terms of the agreement, the foreign company offers technical support over phone

and E-mail in PDF format. This set of instructions is based on the log file of the equipment. The log file is removed from the equipment and the soft

copy is sent to the vendor. After detailed analysis of the log file, the vendor identifies the problem and thereafter gives instructions by way of E-mail

in PDF format. The entire analysis takes place abroad. Only instructions by way of E-mail are sent to the client and there is no online service

performed through internet or an electronic network, but the vendor merely gives instructions.

(b) While so, there was a demand of service tax, vide two Show Cause Notices, dated 13.09.2010 and 18.08.2011 for the period April 2009 to

March 2011 under the management, maintenance and repair services and on the amounts paid under extended warranty period being the recipient

of such services.

(c) The Show Cause Notices were confirmed, vide Order-in-Original Nos. 21 and 22 of 2012, dated 27.1.2012 passed by the Additional

Commissioner of Service Tax, Service Tax Commissionerate, Chennai, on the ground that even if the services were provided over phone or

through E-mail, the activities would squarely be covered by Rule 3 (ii) of the Taxation of Services (Provided from Outside India and Received in

India) Rules.

(d) Against the said order of the original authority, dated 27.1.2012, the petitioner had filed an appeal along with Stay Petition before the

respondent and vide Pre-Deposit-cum-Appeal Order No. 169/2013 (M-ST (PD)) in A.No. 336/2012 (M-ST), dated 07.02.2013, the

respondent ordered pre-deposit of Rs. 10 lakhs to be paid in cash on or before 28.02.2013 and also observed that if the pre-deposit is not paid,

the subject appeal would stand dismissed automatically. Hence, the present Writ Petition is filed for the above relief.

The main focus of the arguments advanced by the learned counsel for the petitioner is that the petitioner had filed the appeal along with stay

petition against the order of confirmation of the impugned demand passed by the original authority towards Service Tax with interest and penalty

and the impugned order calling upon the petitioner to make pre-deposit amount of Rs. 10 lakhs, is on the higher side and it may cause severe

hardship to the petitioner. The respondent has not considered the prima-facie case of the petitioner, capacity to pay the amount, merits of the case

and the amount involved.

On the other hand, learned counsel for the respondent-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 respondent has taken a lenient view while

ordering pre-deposit.

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

passed an order for payment of Rs. 13,02,384/- + Rs. 20,95,992/- towards Service Tax with interest and penalty, as against which, the petitioner

has gone on appeal before the respondent-Commissioner of Central Excise (Appeals) along with stay petition. After considering the petitioner''s

grievances, including the prima-facie case, balance of convenience, financial burden and other difficulties, the respondent ultimately came to the

conclusion and ordered pre-deposit of Rs. 10 lakhs to be paid in cash on or before 28.02.2013 u/s 35-F 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 would 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 respondent-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, Appellate Tribunal, Chennai), 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.

With regard to the undue hardship and other difficulties expressed by the petitioner, much less what is now claimed, the respondent himself has

come to a conclusion while ordering the pre-deposit amount with a lenient approach. Therefore, in my considered opinion, there is no merit in this

writ petition.

However, learned counsel for the petitioner made a plea that time may be given to the petitioner for payment of pre-deposit amount as ordered

by the respondent-appellate authority in the impugned order and on such payment, the respondent may be directed to dispose of the appeal itself.

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 respondent in the impugned order, within a period of two weeks from the date of receipt of a copy of this order, and on such

payment, the respondent shall dispose of the appeal itself, on merits and in accordance with law, within a period of four weeks thereafter. With the

above observations and directions, the Writ Petition is disposed of. No costs. Consequently connected miscellaneous petition is closed.