(Per : HONOURABLE MR.JUSTICE V. M. SAHAI) 1. We have heard Mr.S.Suryanarayan with Mr.Dhaval Shah, learned counsel appearing for the petitionerss and Mr.Varun K.Patel,learned counsel appearing for the respondents.
2. This writ petition has been filed challenging the order of the Tribunal by which the Tribunal has directed the petitioners to deposit Rs. 60 lacs as pre-deposit for maintaining Appeal.
3. The learned counsel for the petitioner has urged that cement and steel etc. material for construction was supplied by service recipient and was not purchased by the appellants,therefore, he is exempted from payment of any service tax so far as these raw materials are concerned. The Tribunal, in its decision in Jaihind Projects Ltd. vs. Commissioner of Service Tax, Ahmedabad 2011(22) S.T.R. 569 (TRI-Ahmedabad) has held that value of material supplied free were sought to be included then, on the question of limitation, the entire waiver of amount was allowed. No doubt, this is not a case of limitation. In this case, the show cause notice was issued beyond one year from the date of filing as submitted by the learned counsel for the petitioners. Therefore, it was a fit case where the Tribunal ought to have allowed 100% waiver of amount of pre-deposit and ought to have decided the Appeal on merits. There is another decision of Bombay High Court in Wardha Coal Transport Pvt.Ltd. v.Union of India 2009(13) S.T.R.490(Bom), wherein the Division Bench has held that once Tribunal has granted full waiver in a similarly situated case, it will not be proper to take a different view and deny full waiver of pre-deposit in the other case.
4. In view of the above, we are of the considered opinion that the Tribunal ought to have granted full waiver to the petitioner. Therefore, the order passed by the Tribunal cannot be maintained.
5. In the result, this petition succeeds and is allowed. The order dated 27.3.2012 passed by the Customs, Excise and Service Tax Appellate Tribunal, West Zonal Bench, Ahmedabad at Annexure "A" to the petition is set aside. The Tribunal shall not compel the petitioner to deposit any amount as pre-deposit as full waiver is granted to the petitioner. The Tribunal shall decide the Appeal on merits expeditiously.
(V.M.SAHAI,J) (N.V.ANJARIA,J) ***vcdarji