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TMI Blog2010 (10) TMI 9X X X X Extracts X X X X X X X X Extracts X X X X ..... ntaining uniformity and consistency in exercise of its judicial discretion. The reason assigned by the Tribunal for not granting complete waiver in the appeal filed by the petitioner in the third year's challenge to the statement being wholly unsustainable, the impugned order (Annexure P-1) deserves to be and is hereby quashed to the extent of imposition of the condition of pre-deposit of Rs.60,00,000/-. - 12695/2010 - - - Dated:- 26-10-2010 - Shantanu Kemkar and S K Seth, JJ Appellant Represented by : Shri Devnath, and Shri Sumit Nema Respondent Represented by : Shri Vinay Zelawat, Senior Standing Counsel. JUDGEMENT Per: Shantanu Kemkar: With consent heard finally. 2. Petitioner claims to be a Company engaged in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... P-5) to the petitioner asking the petitioner why (i) the benefit of notification dated 20.06.2003 should not be denied to it for availment of exemption (ii) the service tax to the extent of Rs.1,29,44,543/- should not be demanded and recovered as service tax liability under proviso to Section 73 of the Chapter V of the Finance Act, 1994, (iii) the interest be not levied, under Section 75 and (iv) why penalty should not be imposed upon it under Section 76 and 78 of the Finance Act. 5. The petitioner submitted its reply to the said show cause notice on 06.12.2009 (Annexure P-6). It was the case of the petitioner in reply that the petitioner is entitled for the benefit of notification No.12/2003 dated 20.06.2003 and that the supply of food ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ding the petitioner's prayer for waiver. He submitted that though in the interlocutory orders the principles of binding precedence does not apply but while considering and passing the orders on the prayer for interim relief need for consistency in approach and uniformity in exercise of judicial discretion was required to be maintained by the Tribunal. He pointed out that on earlier two occasions in the case of petitioner itself relating to the earlier assessment years involving identical question, the Tribunal had granted total waiver for entertaining its appeals bearing no's, Service Tax Appeal No.374/2008 and Service Tax Appeal No.399/2009. In the circumstances, according to him in view of the law laid down by the Supreme Court in the cas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itioner raising the identical question, the Tribunal, while considering the prayer for waiver has granted total waiver from deposit. However, in the present case while considering the prayer the Tribunal in paragraph 7 of the impugned order has observed that the appellant has come before the Tribunal for the third time to seek waiver of pre-deposit on the same plea that no service tax shall be levied if Sales Tax or VAT is paid. Nearly two years are going to expire from the date of passing of the order firstly on 06.08.2008 in Appeal No.374/2008 and one year was going to expire from status quo ante order passed by us on 30.07.2009 in Appeal No.399/2009 following first order and appeal is not reaching for hearing". Observing thus the Tri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o eliminate occasions for grievances of discriminatory treatment requires that all similar matters should receive similar treatment except when factual differences require a different treatment so that there is assurance of consistency, uniformity, predictability and certainty of judicial approach." In the case of Wardha Coal Transport Pvt. Ltd. (supra) a Division Bench of Bombay High Court has observed that once the Tribunal has granted full waiver atleast in two similarly situated cases, it would not be proper for it to take a different view and deny full waiver of pre-deposit. 11. Having regard to the aforesaid, in our view the Tribunal has committed gross illegality in not maintaining uniformity and consistency in exercise of its j ..... X X X X Extracts X X X X X X X X Extracts X X X X
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