JUDGMENT : - R. Sudhakar, J. C.M.A.Nos.300 to 303 of 2014 have been filed under Section 35-G of the Central Excise Act, 1944 challenging the order dated 10.06.2013 made in Misc.Order No.41422 to 41425 of 2013 on the file of the Customs, Excise and Service Tax Appellate Tribunal, South Zonal Bench, Chennai. 2. C.M.A.Nos.1342 to 1345 of 2014 have been filed under Section 35-G of the Central Excise Act, 1944 challenging the order dated 21.03.2014 made in Misc.Order No.40192 to 40195 of 2014 on the file of the Customs, Excise and Service Tax Appellate Tribunal, South Zonal Bench, Chennai. 3. The substantial question of law raised in C.M.A.Nos.300 to 303 of 2014 is "Whether the Tribunal was justified in not granting waiver of pre-deposit when there is no service received in India so as to attract the provisions of Section 66A of Finance Act, 1994 and Rule 3 of the Taxation of Services (Provided from outside India and Received in India) Rules, 2006" 4. The appellant is engaged in the transport of cargo through ships owned or chartered by them. According to the Revenue, the assessee was not paying service tax in respect of certain remittances made to their agents in abroad. The Revenue was of the view that the remittances, which were made by the assessee to the agents abroad, in respect of the Ship Management Services, Maintenance and Repair Services, Technical and Analysis Service, Business Auxilliary Service and Business Support Service , were taxable under the Finance Act, 1994 on the terms that the services were received from a person located abroad and therefore they were liable to pay service tax as a recipient of service in terms of the provisions of Section 66A of the Finance Act, 1994. Hence, four show cause notices were issued and adjudicated, resulting in confirming of the demand of service tax along with interest and penalty. Challenging the same, appeals were filed before the Customs, Excise and Service Tax Appellate Tribunal along with an application for waiver of pre-deposit of duty. 5. The contention of the appellant is that the Section 66 A of the Finance Act, 1994 provides for payment of service tax on services received from outside India, which reads as follows: "Charge of service tax on services received from outside India. 66A. 5. The contention of the appellant is that the Section 66 A of the Finance Act, 1994 provides for payment of service tax on services received from outside India, which reads as follows: "Charge of service tax on services received from outside India. 66A. (1) Where any service specified in clause (105) of section 65 is- (a) provided or to be provided by a person who has established a business or has a fixed establishment from which the service is provided or to be provided or has his permanent address or usual place of residence, in a country other than India, and (b) received by a person (hereinafter referred to as the recipient) who has his place of business, fixed establishment, permanent address or usual place of residence, in India, such service shall, for the purposes of this section, be the taxable service, and such taxable service shall be treated as if the recipient had himself provided the service in India, and accordingly all the provisions of this Chapter shall apply: Provided that where the recipient of the service is an individual and such service received by him is otherwise than for the purpose of use in any business or commerce, the provisions of this subsection shall not apply: Provided further that where the provider of the service has his business establishment both in that country and elsewhere, the country, where the establishment of the provider of service directly concerned with the provision of service is located, shall be treated as the country from which the service is provided or to be provided.” 6. Correspondingly, Rule 3 of the Taxation of Services (Provided from outside India and Received in India) Rules, 2006 provides for various taxable services that are subject to levy of service tax in relation to the service provided from outside India and received in India. 7. It is the specific case of the appellant that even as per the statement of Revenue, the services in this case was rendered outside India and there is no element of service received in India and therefore Section 66A of Finance Act, 1994 and Rule 3 of the Taxation of Services (Provided from outside India and Received in India) Rules, 2006, do not apply to the facts of the present case. However, the Department also rely upon Section 65(96a) of the Finance Act, 1994, which defines the term "Ship Management service" and those services are taxable once the recipient is located in India and the provider is located outside India and therefore the question of taxable event does not arise in the case of services rendered outside India by an agent outside India. 8. The Tribunal proceeded on the basis that there was no material evidence to demonstrate and prove that the payment made for the services rendered abroad; but we found from paragraph 2 of the order-in-original, wherein the Revenue's charge itself is that the demand of service tax is made on the amount paid to the foreign service providers for services rendered outside India, which is supported by the investigation conducted by the department. 9. Mr.Arvind P.Datar, learned Senior Counsel appearing for the appellant submits that the Tribunal while considering the plea for waiver of pre-deposit had taken the liquid asset worth of Rs.39 crores erroneously and there was no material for that. He points out that the profit and loss statement for the year ending 31st March, 2013, shows loss of Rs.15,34,968/- and there are other liabilities also. The company is suffering liquidity crunch in view of the margin money deposits made with various banks for the running of the business, which is referred to in page Nos.69 to 72 of the typed set of papers. Therefore, the appellant has no financial liquidity to pay the demand and, therefore, the plea of undue hardship has not been properly considered. In any event, the primary issue that has to be considered should be interpreted in favour of the appellant by granting waiver of pre-deposit. 10. We heard Mr.Arvind P.Datar, learned Senior Counsel appearing for the appellant and Mr.V.Sundareswaran, learned Standing Counsel appearing for the first respondent. 11. The primary issue in this case is as to whether the provisions of Section 66A of Finance Act, 1994 and Rule 3 of the Taxation of Services (Provided from outside India and Received in India) Rules, 2006, would be applicable in respect of payments made by the assessee to foreign agents, who had rendered such service abroad and there is no element of receipt of service into India. This primary issue has to be gone into by the Tribunal in the appeal. This primary issue has to be gone into by the Tribunal in the appeal. The issue is purely legal in the face of the admitted facts as above. We find much force in the argument of the learned Senior Counsel appearing for the appellant that if the admitted plea of payment made to the service provider abroad for services rendered outside India, it will not fall within the mischief of the service tax, which is applicable only if it is received by a person in India. The prima facie finding of the Tribunal, that there was a service received in India, does not appear to be supported by material. 12. The Tribunal has however misconstrued the plea of undue hardship of the appellant on the premise that there are liquid assets to the tune of Rs.39 crores and ordered pre-deposit of Rs.1,30,00,000/- within a period of eight weeks. It may true be that there are some liquid assets in the course of business, but the overall financial position of the company is reflected in the profit and loss account, which shows a loss. Therefore, the appellant has established the plea both on prima facie case and undue hardship. 13. At this juncture, it is apposite to refer to a decision of the Supreme Court in BenaraValves Ltd. v. CCE, (2006) 13 SCC 347, wherein it has been held as under: “8. It is true that on merely establishing a prima facie case, interim order of protection should not be passed. But if on a cursory glance it appears that the demand raised has no legs to stand on, it would be undesirable to require the assessee to pay full or substantive part of the demand. Petitions for stay should not be disposed of in a routine manner unmindful of the consequences flowing from the order requiring the assessee to deposit full or part of the demand. There can be no rule of universal application in such matters and the order has to be passed keeping in view the factual scenario involved. Merely because this Court has indicated the principles that does not give a licence to the forum/authority to pass an order which cannot be sustained on the touchstone of fairness, legality and public interest. There can be no rule of universal application in such matters and the order has to be passed keeping in view the factual scenario involved. Merely because this Court has indicated the principles that does not give a licence to the forum/authority to pass an order which cannot be sustained on the touchstone of fairness, legality and public interest. Where denial of interim relief may lead to public mischief, grave irreparable private injury or shake a citizen’s faith in the impartiality of public administration, interim relief can be given. 9. It has become an unfortunate trend to casually dispose of stay applications by referring to decisions in SiliguriMunicipality v. Amalendu Das, (1984) 2 SCC 436 and CCE v. Dunlop India Ltd., (1985) 1 SCC 260 cases without analysing factual scenario involved in a particular case. 10. Section 35-F of the Act reads as follows: “35-F. Deposit, pending appeal, of duty demanded or penalty levied.—Where in any appeal under this Chapter, the decision or order appealed against relates to any duty demanded in respect of goods which are not under the control of Central Excise Authorities or any penalty levied under this Act, the person desirous of appealing against such decision or order shall, pending the appeal, deposit with the adjudicating authority the duty demanded or the penalty levied: Provided that where in any particular case, the Commissioner (Appeals) or the Appellate Tribunal is of opinion that the deposit of duty demanded or penalty levied would cause undue hardship to such person, the Commissioner (Appeals) or, as the case may be, the Appellate Tribunal, may dispense with such deposit subject to such conditions as he or it may deem fit to impose so as to safeguard the interests of the Revenue: Provided further that where an application is filed before the Commissioner (Appeals) for dispensing with the deposit of duty demanded or penalty levied under the first proviso, the Commissioner (Appeals) shall, where it is possible to do so, decide such application within thirty days from the date of its filing.” 11. Two significant expressions used in the provisions are “undue hardship to such person” and “safeguard the interests of the Revenue”. Therefore, while dealing with the application twin requirements of considerations i.e. consideration of undue hardship aspect and imposition of conditions to safeguard the interests of the Revenue have to be kept in view. 12. Two significant expressions used in the provisions are “undue hardship to such person” and “safeguard the interests of the Revenue”. Therefore, while dealing with the application twin requirements of considerations i.e. consideration of undue hardship aspect and imposition of conditions to safeguard the interests of the Revenue have to be kept in view. 12. As noted above there are two important expressions in Section 35-F. One is undue hardship. This is a matter within the special knowledge of the applicant for waiver and has to be established by him. A mere assertion about undue hardship would not be sufficient. It was noted by this Court in S. Vasudeva v. State of Karnataka, (1993) 3 SCC 467 that under Indian conditions expression “undue hardship” is normally related to economic hardship. “Undue” which means something which is not merited by the conduct of the claimant, or is very much disproportionate to it. Undue hardship is caused when the hardship is not warranted by the circumstances. 13. For a hardship to be “undue” it must be shown that the particular burden to observe or perform the requirement is out of proportion to the nature of the requirement itself, and the benefit which the applicant would derive from compliance with it. 14. The word “undue” adds something more than just hardship. It means an excessive hardship or a hardship greater than the circumstances warrant. 15. The other aspect relates to imposition of condition to safeguard the interests of the Revenue. This is an aspect which the Tribunal has to bring into focus. It is for the Tribunal to impose such conditions as are deemed proper to safeguard the interests of the Revenue. Therefore, the Tribunal while dealing with the application has to consider materials to be placed by the assessee relating to undue hardship and also to stipulate conditions as required to safeguard the interests of the Revenue.” 14. The larger issue as to whether in respect of the services rendered by an agent in a foreign country, for which payment was also made abroad, the payment of service tax will apply if no service is received in India has to be decided by the Tribunal in the appeals on merits. The appellant will be entitled to such relief on this plea in the light of Section 66A(1) of the Finance Act, 1994. 15. The appellant will be entitled to such relief on this plea in the light of Section 66A(1) of the Finance Act, 1994. 15. We find much force in the plea of the appellant regarding undue hardship and financial difficulty in pursuing the appeal on payment of the pre-deposit as ordered by the Tribunal. The same, therefore, requires to be modified considering the prima facie case of the appellant. 16. For the foregoing reasons, we pass the following order: i. On the question of law raised, we are of the view that the Tribunal was not justified in ordering the pre-deposit in the manner stated in its order dated 10.6.2013; ii. Consequently, the order of the Tribunal dated 10.6.2013 is modified to the effect that the appellant shall make a pre-deposit of Rs.50,00,000/- (Rupees Fifty Lakhs only) towards pre-deposit on or before 8.8.2014 and subject to such compliance, as stated in the order of the Tribunal dated 10.6.2013, the pre-deposit of balance amount demanded shall remain waived and its collection shall stand stayed during the pendency of the appeal before the Tribunal; and iii. The order of the Tribunal dated 21.3.2014 dismissing the appeal for non-compliance of the stay order is set aside and the appeal is restored to the file of the Tribunal. In the result, these appeals are ordered in the above terms. No costs. Consequently, connected Miscellaneous Petitions are closed.