THE HON’BLE THE CHIEF JUSTICE SRI KALYAN JYOTI SENGUPTA AND THE HON’BLE SRI JUSTICE SANJAY KUMAR
C.E.A.No. 75 of 2014 DATED:26.6.2014
Between:
M/s. TGV Projects & Investments Pvt. Ltd., Kurnool District.
… Appellant And The Assistant Commissioner of Central Excise, Kurnool and another.
….Respondents THE HON’BLE THE CHIEF JUSTICE SRI KALYAN JYOTI SENGUPTA AND THE HON’BLE SRI JUSTICE SANJAY KUMAR
C.E.A. No.75 of 2014
Judgment: (per the Hon’ble the Chief Justice Sri Kalyan Jyoti Sengupta)
This appeal is sought to be preferred and admitted on the following suggested questions of law:
1. Whether the fixed shared agreement entered by the appellant company would be termed as the renting of immovable property service for the purposes warranting the levy of service tax ?
2. Whether the Tribunal is justified in not exercising the jurisdiction conferred on it under Section 35F of the Central Excise Act, 1944 to mitigate the undue hardship caused to the appellant company ?
It appears, the appellant preferred an appeal against the order of the Commissioner of Customs, Central Excise and Service Tax (Appeals) dated 15.10.2013 before the learned Tribunal. An application for waiver of pre-deposit and consequently, stay of operation of the order was made. The learned Tribunal, assessed the extent and degree of the prima facie fact as made out by the appellant. The learned Tribunal found that the case is not so strong, for which, full waiver was warranted. Essentially going by prima facie case alone element of hardship as projected was not found, while doing so findings on merit have been recorded obviously prima facie. It appears 50% of the pre-deposit amount has been waived, but in lieu thereof, bank guarantee was asked to be furnished and the balance 50% was asked to be deposited. The case was not made out before the learned Tribunal on financially hardship. Under the circumstances, we are unable to substitute our own assessment of the degree of prima facie case refusing the contention of appellant, it does not appear to be perverse. We, therefore, do not find any element of law to be decided in this appeal.
Learned counsel for the appellant, however, informs that the issue as to the leviability of Service Tax is before the Hon’ble Supreme Court.
We think until and unless the Supreme Court decides striking down this portion of law, the statute has to be operated. We, therefore, dismiss the appeal. However, time to comply with the order of the learned Tribunal is extended for a period of one month from date. We make it clear that all findings recorded at the prima facie stage by the learned Tribunal or that of our order will not be binding at the final stage of hearing.
Consequently, the miscellaneous applications shall also stand dismissed. No costs.
K.J. SENGUPTA, CJ SANJAY KUMAR, J 26th June, 2014 pnb