Whether waiver of pre-deposit is granted if assessee fails to explain the circumstances or nature of the undue hardship

PJ/CASE LAW/2015-16/3019

Case-KAILASH TRAVELLING AGENCIES Versus COMMR. (APPEALS) CUS. & C. EX., RAIPUR

Citation-2015 (40) S.T.R. 18 (Chhattisgarh)

Brief Facts-The present appeal arises from an interim order passed by the Customs, Excise and Service Tax Appellate Tribunal, New Delhi, under Section 35F of the Central Excise Act, 1944 (hereinafter referred to as ‘the Act’) granting waiver of pre-deposit to the extent of remaining liabilities only but with a direction to deposit the adjudicated Service Tax liability along with interest within eight weeks.

Appelants Contention- Learned Counsel appearing for appellant submitted that the amount of Rs. 17,90,023/- directed to be deposited was exorbitant and shall cause undue hardship. The Appellant has a good prima facie case. A sum of Rs. 4,50,000/- has already been deposited in part towards the adjudicated liabilities.

Respondents Contention-Learned Counsel for the Respondent opposing the appeal submitted that partial waiver of pre-deposit has already been granted. If partial deposit had been made, there shall be a presumption that the Tribunal had appropriately considered the same before passing the impugned order which therefore requires no interference.

Reasoning Of Judgement-The power under Section 35F of the Act is discretionary in nature to be exercised in accordance with the guidelines laid down in the Section. Merely because as a superior Court, the High Court may have the authority to take a different view of the matter, shall not be sufficient reason for them to interfere unless there has been any procedural irregularity or the order suffers from perversity, or has failed to consider the grounds urged. If a person contends undue hardship, the onus lies on him/her to place the necessary facts in support of the same.
They have gone through the stay application filed by the Appellant before the Tribunal. Except for reciting that it would cause undue hardship, there is no material pleading with regard to the circumstances or nature of the undue hardship that would be caused. Therefore they find no reason to interfere with the impugned order dated 4-12-2014. If the Appellant is of the opinion that a part of the adjudicated liability had already been deposited, it may bring it to the attention of the Tribunal itself. In that event subject to the satisfaction of the Tribunal, unless already considered, nothing prevents it from passing appropriate orders for modification or clarification of its order dated 4-12-2014.
In view of the fact that the order regarding waiver of pre-deposit was dispatched, on 2-1-2015 according to the certified copy, the time for deposit as directed by the Tribunal is extended by two weeks from 24-2-2015.

Decision-The appeal dismissed

Comment-The case is related to waiver of pre deposit under section 35F on the basis of undue hardship. High court held that the onus lies on appellant/assessee to place the necessary facts in support of his ground of undue hardship. Merely because as a superior Court, the High Court may have the authority to take a different view of the matter, shall not be sufficient reason for them to interfere unless there has been any procedural irregularity or the order suffers from perversity, or has failed to consider the grounds urged. As there is no material pleading with regard to the circumstances or nature of the undue hardship therefore appeal of assessee is dismissed.

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PJ/CASE LAW/2015-16/3019

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