Gurmeet Singh Sandhawalia, J.:-

1. The instant appeal, filed under Section 83 of the Finance Act, 1994 (for short the 'Finance Act') read with Section 35 G of the Central Excise Act, 1944 (for short, the 'Act'), is directed against the order dated 20.11.2014 (Annexure A-13), passed by the Customs, Excise & Service Tax Appellate Tribunal, New Delhi (for short, the 'Tribunal'). Vide the said order, the Tribunal has refused to interfere in the order of the Commissioner (Appeals) dated 31.01.2013 (Annexure A-10) wherein pre-deposit on the entire amount was ordered, during the pendency of the first appeal.

2. The questions of law that arises for consideration is as under:

"a) Whether in the light of amended Section 35F order to deposit entire amount of adjudicated service tax is justified?

b) Whether order passed by the ld. Tribunal is perverse and contrary to facts and circumstances of the case?

c) Whether the impugned order is justified when the appellant has strong prima facie case on merits?"

3. The reasoning given by the Tribunal was that the rent note executed by the appellant showed that the building, plant and machinery along with other infrastructure had been rented out and therefore, fell within the renting of immoveable property and was, thus, exigible to service tax.

4. A perusal of the paperbook would show that a show cause notice dated 19.06.2009 was issued to deposit the service tax amounting to `10,28,160/- along with interest on account of the fact that during the audit conducted on M/s. Kapsons Industries, Jalandhar, it was found that lease deed had been entered into on 01.04.1997 (extended on 29.03.2001) for leasing out plant and machinery, equipments, jigs and fixtures, dies, office equipments, furniture and fittings to the said unit `7,00,000/- per month being the lease amount, out of which, `55,000/- was allegedly for the land and building and the balance was for the use of other facilities. Accordingly, the appellant was asked to send the deposit particulars along with the documentary evidence and pay service tax upto 30.06.2009. On 10.08.2009, the appellant submitted the details of the lease/rent receipts from 01.04.2008 to 30.06.2009 and vide notice dated 30.05.2011 (Annexure A-6), it was asked to deposit the service tax of `46,04,320/- along with interest. The final audit report further raised various dues and violations which had been made by the appellant.

5. Accordingly, an order dated 15.12.2011 (Annexure A-9) was passed by the Adjudicating Authority, wherein a finding was recorded that a sum of `2,80,00,000/- had been received as rent and the service tax liability was worked out at `31,86,820/- as the appellant had not got himself registered nor paid service tax and there was violation of Section 68, 69, 70, 73(1) of the Finance Act read with Rule 7(4) of the Service Tax Rules, 1994. Accordingly, the extended period under Section 73(1) of the Act was invoked and it was held that it was also liable to pay interest on the evaded service tax, apart from the demand of`31,86,820/- along with penalty of `200/- per day, during which, such failure continued, apart from the penalty of `5000/- and an equivalent penalty also under Section 78.

6. The appellant filed an appeal before the Commissioner (Appeals) and filed an application praying for waiver of the penalty as prescribed under Section 35F of the Act. The plea taken that the service tax was not liable to be paid since the rent amount had been divided into two heads, one of land and building and the other for plant and machinery, was rejected as the same had never been disclosed during the audit. The plea that the demand was time barred was also rejected as the fact had never been disclosed to the Department on its own and was only detected by the audit team. In the absence of any undue hardship, the Commissioner (Appeals), directed the appellant to pay the entire amount of service tax confirmed against it and waived off in full the requirement of pre-deposit of i

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