Antony Dominic, J. Heard the learned counsel for the appellant and the learned standing counsel appearing for the respondent.
2. This appeal arises from Annexure H order passed by the Customs, Excise and Service Tax Appellate Tribunal (CESTAT), South Zonal Bench, whereby the appellant is directed to remit `8,00,000/- and it is ordered that subject to compliance with the above, there shall be waiver of pre-deposit of the balance dues and stay against recovery.
3. The main contention raised by the appellant was that, in view of the provisions contained in the Finance Act, 2014, the appellant could have been called upon to remit only 10% of the amount demanded, and that, therefore, the order passed by the Tribunal is illegal. However, a reading of the second proviso to Section 35F as contained in the Finance Act, 2014, itself shows that the provision relied on by the learned counsel for the appellant shall not apply to stay applications and appeals pending before any appellate authority prior to the commencement of the Finance Act, 2014, viz., 6/8/2014.
4. In so far as this case is concerned, the stay application is dated 15/4/14 and the order passed by the Tribunal is dated 26/8/2014. Evidently, therefore, as on 6/8/14, when the Finance Act came into force, the stay application dated 15/4/14 was pending before the CESTAT and therefore, the provisions relied on by the learned counsel for the appellant does not come to his assistance in any manner.
5. Learned counsel then went on to argue that the condition requiring him to deposit an amount of `8,00,000/- as ordered by the Tribunal is too onerous and that having regard to the prima facie case and the financial hardships that were made out by the appellant, the Tribunal should not have imposed such a condition. This prayer of the learned counsel for reduction of the amount ordered by the Tribunal was opposed by the standing counsel for the respondent relying on Circular No.984/08/2014-CX dated 16th September, 2014 issued by the Central Board of Excise & Customs. Learned counsel pointed out that, as per this circular, when prayers of the nature that is now made are urged, the total amount due from the appellant including the duty payable and penalty should be taken into account.
6. Though the position as canvassed by the learned standing counsel for the respondent is unassailable, still, fact remains that, in so far as this case is concerned, Annexure D order passed by the adjudicating officer demands an amount of `11,61,898/- towards service tax, `23,237/- towards education cess and `8,500/- towards secondary and higher education cess. An equal amount is also levied as penalty under Section 78 of the Finance Act, 1994.
7. Taking note of the totality of the case and also the equal amount of penalty that is levied on the appellant, we feel that the direction requiring the appellant to remit an amount of `8,00,000/- is too onerous. Therefore, we reduce the amount as ordered by the Tribunal and direct that the appellant shall deposit an amount of `5,00,000/- (Rupees five lakhs only) within two weeks from today. Subject to remittance of the amount as above, there shall be waiver of pre-deposit of balance dues and stay of recovery as ordered by the Tribunal.
C.E. Appeal is disposed of as above.
Rp //True Copy// PA to Judge Sd/-
ANTONY DOMINIC JUDGE Sd/-
ANIL K. NARENDRAN JUDGE