CE (Lodging) Appeal No. 333 of 2013. Case: Board of Trustees Of Jawaharlal Nehru Port Trust Vs C.C.E.. Bombay High Court

Case NumberCE (Lodging) Appeal No. 333 of 2013
Party NameBoard of Trustees Of Jawaharlal Nehru Port Trust Vs C.C.E.
CounselFor Appellant: Shri V. Sreedharan, Senior Advocate a/w Prakash Shah and Jas Sanghvi i/b. PDS Legal and For Respondent: Shri A.S. Rao i/b. Ms. Suchitra Kamble
JudgesS.C. Dharmadhikari and Girish S. Kulkarni, JJ.
IssueFinance Act, 1994 - Section 83
Citation2015 (39) STR 572 (Bom.)
Judgement DateMarch 04, 2014
CourtBombay High Court

Order:

  1. This Appeal is by the Board of Trustees of Jawaharlal Nehru Port Trust challenging an order passed by the Customs, Excise and Service Tax Appellate Tribunal, Mumbai on 17-9-2013 on an application for waiver of pre-deposit of service tax of Rs. 1,64,01,668/- plus interest and penalty.

  2. In the submission of Mr. Sreedharan, learned Senior Counsel appearing for the Appellant, the Tribunal in passing the impugned order has lost sight of the fact that the record also refers to the Chart at page 198 of the paper book which contains the details of the credit availed of during April, 2010 to March, 2011. The break up would indicate that the substantial sum, namely, Rs. 8,766,774/- pertains to services not provided. In view thereof and in the teeth of clear language of sub-rule (3) of Rule 6 of the Service Tax Rules, 1994, the Tribunal has erred in directing pre-deposit of Rs. 1 crore. That is on the footing that the present Appellants have not demonstrated even prima facie as to how the ingredients of sub-rule (3) are satisfied by them. The Tribunal has virtually concluded that this sub-rule could not have been invoked because the case involves adjustment and it is not in respect of services which are not provided, but it is for the discount and rebate. Therefore, such findings give rise to a substantial question of law for which this Appeal requires admission.

  3. We have been taken through the order passed by the Tribunal and the orders impugned before it and the stand taken by the Appellants.

  4. Alternatively and without prejudice, it is submitted that as the Appellant is the Public Sector Undertaking, in terms of the order passed by this Court in Writ Petition No. 1477/2009 (Hindustan Petroleum Corporation Limited v. Union of India) decided on 2-9-2009 reported in 2010 (256) E.L.T. 731 (Bom.), such Public Sector Undertakings need not be called upon necessarily to deposit the sum and the interest of justice would be protected by obtaining an undertaking or bond from such Undertakings which are otherwise solvent. In these circumstances the Appeal deserves to be admitted is the submission.

  5. On the other hand, Mr. Rao, learned counsel appearing for the Respondent, urged that this Appeal does not give rise to any substantial question of law. This is not a case where the Tribunal while passing the impugned order completely ignored the material on record or recorded any prima facie finding which is perverse or contrary to law. The discretion...

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